Merwin v. Morris

• Decision Date: 09 March 1899
• Citation: 42 A. 855,71 Conn. 555
• Court: Connecticut Supreme Court
• Parties: MERWIN v. MORRIS et al.

42 A. 855

71 Conn. 555

MERWIN

v. MORRIS et al.

Supreme Court of Errors of Connecticut.

March 9, 1899.

Appeal from court of common pleas. New Haven county; Leverett M. Hubbard, Judge.

Action by Caleb T. Merwin against Andrew B. Morris and others. Judgment was rendered in a justice court for plaintiff, and defendants appealed to the court of common pleas, where a verdict was given for plaintiff, and from a judgment entered thereon defendants again appeal. No error.

The complaint alleged (1) that the plaintiff on June 25, 1896, owned and was possessed of a certain piece of land, described by its bounds; (2) that on said June 25th the defendants unlawfully entered on said land, and pulled up the posts of a fence, etc. The answer contained a first defense, being a general denial, and a second defense, alleging that the defendants at the time of the acts complained of were owners in fee simple and in possession of the land described in the complaint. From the finding of the trial court (Hubbard, J.) it appears: In 1773 there were two pieces of land in Milford adjoining each other, and both bounding in part on the shore of Long Island Sound. One piece was known as "Phillips Meadow," containing by recent measurement 2.52 acres. The other piece was known as "the salt meadow lying in Round meadow," containing by recent measurement 3.46 acres. Phillips meadow is the land in question. The plaintiff claims to own it, deriving his title from one Samuel Burwell, through a number of mesne conveyances. The defendants own the lot in Round meadow, deriving their title from one Jeremiah Platt, through a number of mesne conveyances, and claiming that the description of boundaries in the deed of one of their predecessors in title in 1845 was such as to include Phillips meadow within the boundaries of the Round Meadow lot. It was conceded on the trial that the defendants owned and were in possession of Round Meadow lot. lying north of Phillips meadow, and the respective tracts of land (that of the defendants and that claimed by the plaintiff) are shown by the following map, prepared from the map which was made a part of the finding:

The conveyances, so far as significant, are as follows: As to the plaintiff's line: Samuel Burwell devised Phillips meadow to his son Benedict Burwell by will dated January 1, 1777. June 29, 1779, Benedict Burwell conveyed to his brother Samuel Burwell, 2d, "a piece of meadow given me by my father, Samuel Burwell, deceased, called 'Phillips Meadow,' bounded north on Solomon Baldwin, west and south on the highway, and east on the beach." It was admitted that the land of Solomon Baldwin, on the north, is the land now owned by the defendants, and Phillips meadow is the land in dispute. By will dated June 13, 1811, Samuel Burwell, 2d, devised Phillips meadow to his grandsons, Benedict Burwell and Robert Burwell. December 8, 1817, Benedict and Robert Burwell conveyed Phillips meadow to Daniel Merwin, bounded "north on Isaac Baldwin, and as described in former deeds." It was conceded that the land of Isaac Baldwin, on the north, is the land now owned by the defendants. November 27, 1891, the heirs at law of Daniel Merwin conveyed Phillips meadow to Edwin M. Munger. February 25, 1896, Edwin M. Munger conveyed Phillips meadow to the plaintiff. As to defendants' line: December 27, 1773, Jeremiah Platt conveyed to Solomon Baldwin "a piece of salt meadow lying in Round meadow, containing two acres, be the same more or less, bounded north on meadow belonging to Nathan Borgan's heirs and his own meadow; east on the sea; south on Samuel Burwell's meadow; west on a two-rod highway." The land described as "Samuel Burwell's meadow" is the land claimed by the plaintiff. February 4, 1819, Isaac S. Baldwin, who, it is admitted, had succeeded to the title of Solomon Baldwin, conveyed to Thomas Merwin "a certain piece of land lying at a place called 'Round Meadow,' containing 2 1/2 acres, more or less, bounded north part on Nathaniel Smith, Nathan Merwin, and grantor, east on beach, south on Samuel Burwell's heirs, and west on highway." This land of "Samuel Burwell's heirs" is the land now claimed by the plaintiff. June 20, 1842, the administrator (Lewis Merwin) filed in the court of probate an inventory of the estate of Thomas Merwin, deceased. The list of real estate contains 12 items, each describing a lot by name or designation, and number of acres, and valuation. The only item relating to the land in controversy is this: "Two acres and a half at Round meadow, at $12, $30.00." September 26, 1845, Lewis Merwin, administrator, under order of court of probate sold and conveyed, for $18, to Nathaniel Smith (he being the highest bidder at public auction), "a piece of land at a place called 'Round Meadow,' containing two acres, more or less, bounded easterly and southerly on the beach, westerly on the highway, and northerly on Smith's own land." Within a few weeks Smith conveyed the land, described in the same manner, to Lewis Merwin, individually. Four conveyances followed, each describing the land in the same way. The fourth is to John W. Fisher, and is dated March 13, 1869. November 25, 1876. John W. Fisher conveyed to John M. Aimes 2 1/2 acres at Round Meadow Hill, bounded as before. March 9, 1886, the administrators on the Aimes estate conveyed to the defendants. A number of intervening deeds caused by a tax levy need not be mentioned. These deeds, wills, and inventory were all duly recorded and proved. They constituted all the documentary evidence in the chain of the plaintiff's title and in the chain of the defendants' title. It appeared in evidence, and was admitted, that the land in controversy was a piece of meadow marsh and sea beach, unfitted for the raising of crops; a small portion being covered with bushes, and a small part, only, producing salt and marsh grasses sufficiently valuable for cutting.

The plaintiff offered evidence to prove, and claims to have proved, that upon receiving the deed from Munger, February 25, 1896, he entered upon the land conveyed, caused the same to be surveyed, and the map produced in evidence to be made; that at the time of such entry he found no other person in possession or occupation of the land; that the land was not inclosed, but that on the northerly boundary thereof, along the land of the defendants, there were remains of an old crooked rail fence, the location of which was evidenced from a line of fence bushes, and for a considerable distance by the stones upon which the rails of the original fence had rested. On this divisional line the plaintiff erected fence posts, the removal of which by the defendants on June 25, 1896, constitutes the injuries complained of. The defendants claimed that the deed from Daniel Merwin's heirs to Munger, and the deed from Munger to the plaintiff, were void, under the statute, because, as they claimed, at the time such deeds were executed the grantors were ousted of possession. The defendants, in support of their plea of title, further claimed to be owner of the land in dispute by virtue of an adverse possession commencing in 1869, when the Round Meadow lot was conveyed to John W. Fisher. Upon the claims of ouster and adverse possession much conflicting testimony was offered. The defendants offered evidence of various acts by John W. Fisher during his ownership of the Round Meadow lot, by John M. Aimes during his ownership, and by the defendants since 1886, and claimed that these acts established their title by adverse possession. But no evidence whatever was offered of any acts of ownership, dominion, possession, or occupation, adverse to the title of the plaintiff or that of the grantors, from October 26, 1881 (being the date of the death of John M. Aimes), to March 9, 1886, when Round Meadow lot was conveyed to the defendants. In rebuttal the plaintiff offered evidence of various acts by his grantor, Daniel Merwin, and by his grantor, Munger, and various acts by other parties, and claimed that these acts disproved any occupation, uninterrupted and of an exclusive character, by the defendants or their predecessors, and offered other evidence by which he claimed to have proved that the owners of the record title to the disputed land were never ousted or disseised. During the trial the defendants offered in evidence certain tax lists for the years 1888, 1889, 1890, 1891, and 1892. These lists were made out by the assessors of Milford, were not subscribed or sworn to by any person as the owner of the property contained in such lists, and purported to be the tax lists of James Morrissey & Sons. Each list contained this item, "1 acre 2 qrs. salt meadow (assessors' valuation), $15," and also this item, "2 acres Fisher land (assessors' valuation), $60." These lists were offered in support of the defendants' claim that they had paid the taxes for these years on the land in controversy; and the defendant Andrew B. Morris claimed in his testimony that the item in said tax lists, "2 acres Fisher land," referred to land lying north of the line of the old cross fence, as shown on the map (being the dividing line between Round Meadow lot and Phillips meadow), and that the item, "1 acre 2 qrs. salt meadow," referred to a strip of salt marsh lying for the most part north of the line of said old fence, but extending to some extent southerly from said old fence, into the tract of land claimed by the plaintiff. Against the objections of the plaintiff, the court admitted each of these tax lists, together with the testimony of Andrew B. Morris as to the meaning of the two items mentioned, and that he had paid the taxes thereon. The defendants also offered the tax lists for the years 1887 and 1893, which were in all respects the same as those admitted, except that the one for 1887 purported to be in the name of "James Morrissey," and the one for 1893 of the "Estate of James Morrissey." On objection of the plaintiff the court excluded the lists for 188...