Freedman v. Avery

• Citation: 89 Conn. 439,94 A. 969
• Court: Supreme Court of Connecticut
• Decision Date: 16 July 1915
• Parties: FREEDMAN v. AVERY.

94 A. 969

89 Conn. 439

FREEDMAN

v. AVERY.

Supreme Court of Errors of Connecticut.

July 16, 1915.

Appeal from Superior Court, Tolland County; Joseph P. Tuttle, Judge.

Action by Allis Freedman against Ernest W. Avery. Judgment for defendant, and plaintiff appeals. No error.

On August 6, 1911, William H. King, a resident of Springfield, Mass., was the owner of a lot of land containing about 100 acres, lying in a part of the town of Stafford, in this state, which is little frequented and considerably remote from any center of population. On this day, King by warranty deed conveyed the land to one Galbraith, who lived on premises next adjoining. The deed contained the following words:

"The timber on the place does not belong to said Galbraith, being sold to other parties, to be removed in two years. All wood and timber;"

—and was recorded in the land records of the town of Stafford, September 7, 1911. At this time King owned about 75,000 feet of sawed lumber piled in large piles on this lot of land, and worth about $750.

On December 10, 1912, the plaintiff loaned to King $2,000, for which King gave to the plaintiff his note payable three months after date; and, as security for the loan, he executed and delivered to the plaintiff a warranty deed absolute in form, which purported to convey the fee, free of incumbrances, of the same lot of land he had conveyed to Galbraith, together with all the lumber thereon, but reserved to King the right to remove the ties already cut and to be cut from said premises, but no other lumber whatsoever. Said deed was duly recorded in the land records of the town of Stafford, but the secret and separate defeasance was never placed on record. The plaintiff never examined the land records concerning the title to said land, and he himself never had any title thereto.

When the note for $2,000 became due, King paid the plaintiff a part and gave him a new note for the balance. When this note came due, King failed to make any payment thereon, and the plaintiff held it unpaid until July 25, 1913. Before its maturity, he had learned of the deed from King to Galbraith, and also that King was indebted to many people, was insolvent, and would not be able to pay his note to the plaintiff. Influenced by these facts, on July 25, 1913, the plaintiff surrendered this note and received therefor from King a bill of sale of all the lumber which was still piled on the land conveyed to Galbraith. This bill of sale the plaintiff did not record.

On July 26, 1913, the plaintiff went to said lot of land with his son, counted the lumber lying there, affixed one of his business cards to each pile thereof, and on that pile nearest the entrance to the lot tacked a paper upon which it was written that the lumber belonged to Allis Freedman. Between that day and September 17, 1913, the plaintiff came four times to show said lumber to five possible purchasers, and each time in an automobile which was left standing in front of the lot while the lumber was being examined. The plaintiff also authorized a lumber broker in Springfield to sell this lumber, and he once visited the lot where the lumber was piled. Said broker and the plaintiff's attorney wrote letters to several persons offering to sell the lumber. The plaintiff never made any attempt to inform Galbraith that he claimed to be the owner of the lumber, or to make any arrangement with him to allow it to remain upon his land; and although it remained in the same position until July 16, 1914, the plaintiff did not put it into his list of taxable property either in Massachusetts or in Connecticut, nor pay any taxes on it. The tax assessors of the town of Stafford placed it in the tax list of Galbraith, and he paid the taxes on it because he was unable to find who the owner was. Between July 25 and September 17, 1013, this lumber was twice attached as the property of said King, and certificates of such attachments were placed upon it, but these attachments had been vacated, for some reason not disclosed by the evidence, before September 17, 1913, when the defendant, as deputy sheriff of Tolland county, attached the lumber as the property of King in a suit against him by Mary A. Baker, of Somers. At that time there was nothing on the land or on the lumber piled upon it to indicate to any person that the lumber belonged to any other person than said King. None of the cards or notices which had been posted by the plaintiff was visible. Neither the defendant nor said Mary A. Baker at this time had any knowledge or means of knowledge of the bill of sale of said lumber to the plaintiff, nor of any claim of the plaintiff respecting the same. When filing his attachment, the defendant discovered on the town land records the deeds from King to Galbraith and to the plaintiff, and also learned of the previous attachments, and that they had been released for some reason unknown to him. In the action in which the defendant made said attachment, judgment was obtained and execution duly issued thereon June 24, 1914. The defendant made due and unsuccessful demand on King upon said execution, and thereafter proceeded to levy the same upon the lumber, but before the completion of such levy the lumber was replevied by the plaintiff in this suit.

During the trial, Gurdon W. Gordon, the Springfield lawyer who drew the bill of sale of the lumber by King to the plaintiff, testified in detail concerning that transaction; and that he had instructed the plaintiff to go to the place where the lumber was located and take possession of it. Thereupon he was asked whether he advised the plaintiff "how to take possession." Upon objection, the question was excluded. The same witness testified that he had written a letter to a certain person to get him to buy said lumber. Upon objection, the plaintiff's counsel stated that he offered this and other similar evidence to show that the plaintiff had taken possession of said lumber. The court excluded the evidence. Subsequently the same witness testified, without objection, that he had written several letters for the plaintiff in efforts to make a sale of said lumber.

Frederick Cohen, a witness for the plaintiff, testified that he drew the deed from King to the plaintiff on December 10, 1012, and was then asked whether at that time "any particular mention was made of this lumber." Upon objection, the question was excluded. Subsequently the same witness testified that "about February, 1013," the plaintiff told him that the lumber had been attached, and requested him to write a letter to the deputy sheriff who had made the attachment, asking him to remove it, and that he did so. Plaintiff's counsel claimed the statement to show an act of possession. Upon objection', the question was excluded.

Lawrence A. Howard, of Hartford, for appellant. Warren B. Johnson, of Hartford, and J. Warren Johnson, of Enfield, for appellee.

BURPEE, J. (after stating the facts as above). [1,2] In his complaint the plaintiff alleges that on or about July 25, 1013, William H. King sold and delivered to him the lumber which is the subject of this litigation, and that he took possession thereof. He made no claim of title, in pleading or argument, based on the deed of King to him executed December 10, 1012, nor could he successfully, because its separate defeasance made it a mortgage, which, being recorded without the defeasance, was not valid against an attaching creditor of the grantor. Ives v. Stone, 51 Conn. 446. The alleged sale and delivery apparently were not seriously disputed by the defendant, and the court has found that they were made. No question was raised about consideration or good faith. The contention between the parties concerns only the allegation and claim that the plaintiff took possession of the lumber before the attachment; that is, possession sufficient to repel the presumption of fraud.

In this state the rule of law that requires such a change of possession of personal property sold has been so long established, so often recognized, and so firmly enforced that no one questions it now. It is settled beyond dispute that this rule should be...