Harrison v. Int'l Silver Co.

• Decision Date: 15 December 1905
• Citation: 62 A. 342,78 Conn. 417
• Court: Connecticut Supreme Court
• Parties: HARRISON et al. v. INTERNATIONAL SILVER CO.

62 A. 342

78 Conn. 417

HARRISON et al.

v. INTERNATIONAL SILVER CO.

Supreme Court of Errors of Connecticut

Dec. 15, 1905.

Case Reserved from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action by Alexander Harrison and others against the International Silver Company for sale of land owned by tenants in common, brought to the superior court in New Haven county on the first Tuesday of March, 1900. After answer by the defendant the court found the facts and reserved the question as to what judgment shall be rendered by the superior court upon said facts for the advice of this court Judgment advised for defendant.

The plaintiffs are sons of Apollos W. Harrison and Margaret L., his wife. Prior to 1873 Apollos W. Harrison and wife and his children, namely, the plaintiffs Margaret A. Harrison and Apollos Butler Harrison, who is since deceased, and whose interest passed in equal shares to his sister and the plaintiffs, claimed to be owners of the land described in the complaint by force of provisions of the will of Thomas Belden, deceased, whose estate was settled as a testate estate in 1842; Harrison and wife claiming a life estate in the wife and the children the remainder. In 1873 the land was purchased by and conveyed to one Tobias Kohn, under whom the defendant now claims title. At that time the plaintiffs were minors, being, respectively, 18 and 20 years of age and their sister was of full age. Mrs. Harrison was then insane, and one H. H. Fitch was her conservator, and as such in charge and possession of the land. Apollos W. Harrison and his daughter, Margaret A., conveyed their interest in the land to Kohn by warranty deed. Fitch, as conservator of Mrs. Harrison and guardian of her minor children, conveyed the land to Kohn by deed reciting that he was duly authorized to make such conveyance as guardian and conservator by an order of a court of probate passed on June 28, 1873. Kohn paid to Fitch, for the interests of Harrison and wife and their children, about $3,500, which was the fair value of the land conveyed. Fitch charged himself as conservator with the proceeds of the sale, and remitted said proceeds to Apollos W. Harrison, husband of Margaret L. and father of the plaintiffs. Since the conveyance to Kohn the land has been conveyed by Kohn and his successors in title, has been mortgaged and the mortgages thereon foreclosed, and through a series of mesne conveyances was finally sold to the defendant in April, 1899. In 1874 buildings and improvements were erected on the land by the defendant's predecessor in title at a cost of $45,000, and said improvements have since been maintained by the defendant and its predecessors in title. Apollos W. Harrison died in 1886, and the same year his sons, the plaintiffs, first learned of the conveyances of said land, and became advised of certain defects in the appointment of Fitch as their guardian, which, as was claimed, rendered his conveyance of their interest in the land to Kohn absolutely void, and were advised that they could not commence any action against the parties in possession of and claiming to own the land until after the death of their mother, which occurred December 28, 1898. The plaintiffs gave no notice of their claim to the persons occupying and claiming to own the land until shortly before the commencement of this suit. In February, 1900, the plaintiffs brought this complaint, alleging themselves and the defendant to be in possession as tenants in common of the land in question, and that they own an undivided two-thirds and the defendant an undivided one-third thereof, and claiming a sale of the land. The defendant in its answer denied each allegation of the complaint, and set up a second defense, coupled with a counterclaim. The finding of the court shows that at the commencement of this action, and for more than 26 years prior thereto, the defendant and its predecessors in title have had the actual, exclusive, and uninterrupted possession and use of the land in question under the claim of title in fee simple thereto. The finding also states a number of facts bearing upon questions arising upon the defendant's second defense and counter claim, and including the will of Thomas Belden. The case was reserved for the advice of the Supreme Court of Errors as to what judgment should be rendered upon the facts found by the superior court. It was argued by the parties in full, and two supplemental briefs have been filed at the suggestion of the court. The last argument was, limited to the following questions: (1) The plaintiffs not being in possession, can they maintain this action? (2) If the land in question was intestate estate of Thomas Belden, what are the rights of the parties? (3) Are there sufficient parties to the record? And any other questions that counsel may think proper to raise not already argued.

Lynde Harrison, for plaintiffs. John R. Buck, for defendant.

HAMERSLEY, J. (after stating the facts). It appears from the finding that at the commencement of this action the plaintiffs were not in possession of the land described, and that for some time before there had been a constant actual ouster of the plaintiffs by the defendant and its predecessors in title. The defendant, therefore, upon the facts put in issue by the first defense and found by the superior court, is entitled to judgment, and it is needless to consider the second defense. The action is brought under section 1307 of the General Statutes of 1888 (Gen. St. 1902, § 1037). This section was first passed in 1848. Laws...