Walsh v. Feustel

• Court: Connecticut Supreme Court
• Writing for the Court: BEACH, J.
• Citation: Walsh v. Feustel, 93 Conn. 366, 105 A. 696 (Conn. 1919)
• Decision Date: 04 March 1919
• Parties: WALSH v. FEUSTEL et al.

105 A. 696

93 Conn. 366

WALSH v. FEUSTEL et al.

Supreme Court of Errors of Connecticut.

March 4, 1919

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Walter J. Walsh, as administrator of Margaret B. Heany against Mary Feustel and others. Judgment for plaintiff, and defendants appeal. No error.

This action is brought by the administrator of Margaret B. Heany to recover possession of real estate and for damages. The complaint is in two counts, a third having been withdrawn without prejudice. The first count is in the usual form of an action of ejectment, and the second count alleges that the defendant has wrongfully entered on the premises under a false and unjust claim of title based solely on a deed executed by Margaret Heany while she was mentally incapable of comprehending the nature of her act and while she was under the domination and undue influence of the defendants. The defendants joined issue on both counts, and the case was tried to the jury upon both counts.

Sidney C. Rosenberg, of New Haven, for appellants.

Walter J. Walsh, of New Haven, for appellee.

BEACH J.

The assignments of error relate to the refusal of the court to charge that the administrator could not recover unless his decedent had both title and possession at the time of the alleged wrongful entry, nor unless she had title down to the day of her death, and to that part of the charge which in effect instructed the jury that, if the deed was executed while Margaret Heany was incapable or was under the undue influence of one or both of the defendants, it was void, and gave the defendants no title or right of possession as against the grantor or her administrator. All these assignments of errors are now made to rest on the proposition of law that, although the deed was executed while the grantor was insane or was under duress or undue influence, yet the deed was not void, but voidable, and therefore ejectment will not lie against defendants, who are in possession under such a deed. In other words, the claim is that the administrator is not entitled to a judgment for damages and possession in this action, because he had not secured a preliminary decree setting aside the defendants' deed on the ground of incapacity and undue influence.

This is not on its face a simple action of ejectment. The allegations of the second count are sufficient to support a prayer for a decree setting aside the deed. The plaintiff might have demanded both equitable and legal relief under this complaint, and the court, as a court of equity, might have submitted the issues of incapacity and undue influence to the jury, for an advisory verdict, even if the parties had not consented to do so. If this course had been taken, and the verdict of the jury had been for the plaintiff both upon the equitable and legal issues, as this verdict evidently was, a judgment for damages and possession would have followed as a matter of course. From this point of view it is apparent that all the assignments of error might have been obviated by the addition to the complaint of a prayer for equitable relief as a stepping-stone to the legal relief demanded.

The question then arises whether the defendants have not waived this omission and consented that the plaintiff might attempt to take a short cut to his legal relief. No objection was taken to the inclusion of the second count in a complaint which demanded legal relief only. No objection was made to the trial of the issues of incapacity and undue influence to the jury. No objection was made to the admission of evidence on those issues, and they were litigated and submitted without objection, to the jury for its determination. In fact, the precise point that a verdict for the plaintiff would not entitle the plaintiff to a judgment was not called to the attention of the trial court. It is said that the requests to charge already referred to raise this point. If so, they raise it in a very inadequate and ambiguous way; for they are the customary requests to charge which are appropriate to every ejectment case brought by an administrator, and they convey no intimation of any claim that a plaintiff's verdict would not support a judgment for the plaintiff. Moreover, no motion was made to set aside the verdict on that ground, and no motion in arrest of judgment. It is plain that the point now relied on was not distinctly raised in the court below, and that it cannot now be made the basis of any claim of error based upon a supposed adverse ruling made in the course of the trial.

But since the error, if any, is apparent on the face of the record, and the point is of general interest, we proceed to examine the question whether in this state ejectment may be brought against a defendant in possession under a deed of an insane person or under a deed procured by undue influence. The action of ejectment in this State is more comprehensive than the common-law action. Swift, after describing the English forms of real actions, says:

" In Connecticut we have introduced one action which comprehends and answers the purpose of the whole. This is indiscriminately called an action of ejectment or an action of disseisin. Like the writ of right, it definitely settles title, and is a bar to another action. Damages may be recovered as in the writ of ejectment. Like the writs of entry and assize, it will lie for possessory writs." Swift's Dig. vol. 1, p. 507.

In Crandall v. Gallup, 12 Conn. 365, 371, a plea of estoppel was allowed in an action of ejectment, and Williams, C.J., said:

" And if, as is said, in Wood v. Jackson, 8 Wend. [N. Y.] 35, 40 , the law of that action does not allow a special plea, it does not follow that the rule applies to our action of ejectment, or rather our action of disseisin. This is not the fictitious remedy, which exists in England and in New York; but it is the only real action known to our law, and comprehends, says Judge Swift, all the actions in England, by writ of right, writ of entry and ejectment, with all the multifarious divisions into which they are branched."

It may be conceded that our action of ejectment is not...