Loewenberg v. Wallace

• Decision Date: 22 November 1960
• Citation: 166 A.2d 150,147 Conn. 689
• Court: Connecticut Supreme Court
• Parties: Peter C. LOEWENBERG et al. v. Minnie S. WALLACE et al. Supreme Court of Errors of Connecticut

Page 150

166 A.2d 150

147 Conn. 689

Peter C. LOEWENBERG et al. v. Minnie S. WALLACE et al.

Supreme Court of Errors of Connecticut.

Nov. 22, 1960.

Arthur J. LeClaire, Jr., Manchester, for appellants (defendants).

Stewart J. Stowell, East Hartford, for appellees (plaintiffs).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

KING, Associate Justice.

The plaintiffs and defendants were the respective owners of record of lots 133 and 132 on a map of property called Aetna Green, in East Hartford. The map was filed in the town clerk's office in the fall of 1915. The deeds in the respective chains of title of the parties refer to what, for the purposes of this appeal, is stipulated to be this map. It shows that the lots adjoin, that of the plaintiffs being next east of that of the defendants. Both lots front on the southerly side of a street designated on the map as Judson Place; it is now known as Brown Street. The map gives the frontage of each lot as 60.58 feet and the length of the side lines as 145 feet. The length of the rear lines is not given on the map but appears to be the same as the front lines. While the side lines of each lot are equal in length and parallel, the northwest corner of each is less than a right angle. A fence runs from the point marking the southeasterly corner of lot 132 and the southwesterly corner of lot 133, northerly, in substantially a straight line, to its intersection with the southerly side of Brown Street at a point 5.34 feet easterly of the northwest corner of the plaintiffs' lot 133 as shown on the map. In other words, the fence constitutes the easterly side line of a triangular area having a base of 5.34 feet. This base is coincidental with the westerly portion of the front line of lot 133, and the westerly side line of the triangular area is coincidental with the westerly line of lot 133, as shown on the map.

The plaintiffs purchased their property from Mary Szydlowska by warranty deed dated October 18, 1956. In the deed, the plaintiffs' lot is described as located on the southerly side of Brown Street and as being lot 133 on the Aetna Green map. It is further described as being the property conveyed to Mary Szydlowska by Irving O. and Emma A. Schneider by warranty deed dated May 23, 1953, and recorded in a designated volume and page of the land records. The Schneider deed contains substantially the same description as the Szydlowska deed, referring to the property embraced in the deed as lot 133 on the Aetna Green map. In this action, the plaintiffs allege title in themselves to all of lot 133, the maintenance by the defendants of the fence thereon, and the defendants' claim of an interest in, or title to, the land west of the fence. The relief sought is a judgment determining the rights of the parties in the triangular strip, damages, and any other appropriate equitable relief. The defendants, in a special defense, claimed title to the triangular strip by adverse possession. The remainder of their answer amounted to a general denial of the allegations of the complaint except the allegation concerning the source of their title to lot 132, which they admitted.

This was a statutory action to clear title, instituted under the provisions of what are now §§ 47-31 and 47-32 of the General Statutes. The complaint generally followed that in Practice Book, Form No. 397, except for the added claims for damages and appropriate equitable relief, incidental to the basic claim involved in the statutory action, an action which is equitable in its essence. Foote v. Brown, 78 Conn. 369, 377, 62 A. 667. Under the amplification of the statutory action made by chapter 59 of the Public Acts of 1921, which now is embraced in § 47-32, these claims for incidental relief were proper. Spencer v. Merwin, 80 Conn. 330, 334, 68 A. 370; Shaw v. Spelke, 110 Conn. 208, 214, 147 A. 675.

Section 47-31 provides that the action may be brought by anyone claiming title to, or any interest in, the property, and that the complaint must set forth this title or interest and the manner in which the plaintiff acquired it. Gaul v. Baker, 105 Conn. 80, 84, 134 A. 250. One obvious purpose of the latter requirement is to make certain that a plaintiff has, within the purview of the allegations of his complaint, not a mere groundless claim but an actual interest in the property sufficient to justify his instituting an action concerning it and asking the court to adjudicate his rights and those of the parties defendant. Unless a plaintiff has such an interest, he obviously has no right to maintain an action under the statute for the adjudication of any claims concerning the property. Gager v. Carlson, 146 Conn. 288, 289, 150 A.2d 302; Ball v Town of Branford, 142 Conn. 13, 17, 110 A.2d 459; Padula v. Padula, 138 Conn. 102, 110, 82 A.2d 362; Spelke v. Shaw, 114 Conn. 272, 282, 155 A. 715; 158 A. 809; Borden v. Westport, 112 Conn. 152, 168, 151 A. 512; Roberts v. Merwin, 80 Conn. 347, 350, 68 A. 377. A plaintiff's proof of an interest necessary to enable him to maintain an action under the statute is technically distinct from his proof of the facts necessary to entitle him to an affirmative adjudication in his favor. It is for this reason that a defendant may, if he chooses, put in issue whether the plaintiff has, within the purview of the allegations of the complaint, title to, or an interest in, the property sufficient to enable him to maintain the action. Reaney v. Wall, 134 Conn. 663, 671, 60 A.2d 505; Foote v. Brown, supra. If the allegations of the complaint fail on their face to show in the plaintiff such a title to, or interest in, the property, their insufficiency may be attacked by demurrer. Gerard v. Beecher, 80 Conn. 363, 368, 68 A. 438, 15 L.R.A.,N.S., 900; see Lloyd v. Weir, 116 Conn. 201, 204, 164 A. 386. If a defendant desires to controvert their truth, he may do so by denying them in his answer. Stevens v. Smoker, 84 Conn. 569, 573, 80 A. 788; cf. Robinson v. Meyer, 135 Conn. 691, 693, 68 A.2d 142. That was the course followed in the present case.

The defendants claimed that the plaintiffs' grantor was ousted of possession of the triangular strip at the time of the delivery by her of the warranty deed to the plaintiffs in 1956, and that consequently that deed was, as to that strip, void under the provisions of § 47-21 of the General Statutes, ¹ and therefore inoperative to convey to the plaintiffs any interest whatsoever in the strip. The defendants attack the conclusion of the court that the plaintiffs had record title to lot 133 as inadequate to support a judgment in their favor, since that conclusion does not constitute a finding of a sufficient interest by the plaintiffs in the disputed strip to permit them to maintain this action to clear title to the strip. This claim is sound. 'A mere paper chain of title does not establish ownership in one unless his possession or that of his predecessors in title is shown, though title satisfactorily established may draw with it possession in the absence of any evidence to the contrary. Foote v. Brown, 81 Conn. 218, 225, 70 A. 699.' Mentz v. Town of Greenwich, 118 Conn. 137, 143, 171 A. 10, 12. The conclusion, without more, that the plaintiff had record title to lot 133 was insufficient in this case. Since the court found no other or greater interest in the plaintiffs, a new trial is required. While this is dispositive of the appeal, certain other claims which are likely to arise on a retrial will now be considered.

The defendants claim that no ultimate finding of actual title in the plaintiffs could be made on the subordinate facts as found in this case. The possession necessary to constitute an ouster under § 47-21 is not some fleeting or ephemeral technical invasion of the property nor the occasional technical invasion tolerated by adjoining neighbors on good terms with one another. Rather, it is possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession. Robinson v. Meyer, supra. And where, as here, the ouster is not claimed to have affected other than a definite portion of the property purportedly conveyed by the deed, the statutory invalidity in the deed is restricted in its effect to that portion. Milardo v. Branciforte, 109 Conn. 693, 699, 145 A. 573; Hyde v. Morgan, 14 Conn. 104, 107; Goodman v. Newell, 13 Conn. 75, 78. The special defense should have been clearly limited to the triangular area in controversy. General Statutes § 47-31.

The court found as a fact that the fence had been in its present position for more than fifteen years. The plaintiffs' deed of acquisition was in 1956. As far as is disclosed by the finding, the defendants were in possession of the triangular strip at the time of the conveyance to the plaintiffs, and the effective boundary between the lots was then, and for a long time previously continuously had been, the fence instead of the westerly line of lot 133 as shown on the map. Under these circumstances, there is nothing in the finding to explain how, in view of the existence, location and character of the fence, and the length of time it had remained in place, the court could conclude, as it must in order to render any judgment in favor of the plaintiffs, that they sustained their burden of proving an interest in the triangular strip sufficient to maintain this action to clear title as to it. Milardo v. Branciforte, supra. If the deed of the plaintiffs was in fact void as to this triangular strip, by reason of the statute, then they had no interest in the strip at all and judgment as matter of law must be rendered against them. Borden v. Town of Westport, 112 Conn. 152, 168, 151 A. 512. In view of the plaintiffs' burden of proof, a conclusion that actual title to the triangular area was in the plaintiffs, even if the court had reached such a conclusion, would, in order to stand, have had to rest on subordinate facts...