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years. Mere possession is in no sense evi- , the law to appropriate the land to the pay. dence of a conveyance, real or fictitious; on ment of debts in administering his father's the contrary, its efficacy depends on the as. estate. If the grant of administration and sumption that the title by conveyance is in the proceedings under it were valid, the some one else. Possession of the requisite plaintiff had a legal title; if they were not kind, for the requisite period, is the thing to valid, the defendant had a good title. The be established by evidence, and, when estab title depended solely on the validity of the lished by evidence, this thing, viz., this 15 administration proceedings. As the decrees years of adverse possession, directly extin of the probate court had not been appealed guishes the former ownership, and directly from, the defendant could not attack their invests the person in occupation at the ter- validity in the ejectment suit. He therefore mination of the statutory period, not with relied upon the claim that the long delay in the title of the former owner, but with a taking out administration should have the new ownership acquired through this distinct same effect as a release from the creditors mode. (2) In establishing a legal title ac of Joseph, and that the fiction of an imagiquired tbrough conveyance, possession, Oce nary grant, proved by immemorial usage or cupancy, acts of ownership may or may not, possession, was applicable to this case, and according to the circumstances of each case, the court in substance charged the jury that be relevant to some fact tending to prove the they might presume a title in the defendant conveyance through which ownership is from length of possession alone. A majority claimed. In no other way is there any sub of the judges of this court held that such instantial, evidential relation between the mere struction was erroneous. No opinion of the fact of an actual occupation of land and the court was given. Three of the judges exfact of a deed validly conveying that land to pressed their views. The chief justice, who the occupant. This is unquestionable, unless tried the cause below, warmly defended his it be true that, when a person claiming to charge. Judge Smith argued that the charge be owner of land, but unable to produce evi. was erroneous, because possession had nothdence of conveyance, is in possession for less ing to do with the title, as that must depend than 15 years, the natural inference is that wholly on the validity of the administration he has received a deed of that land; but the proceedings. Judge Gould directly attacked natural inference in such case is precisely the the general proposition of Judge Swift, arguopposite. In vievi of our law regulating the ing that the jury could not presume a conmaking and record of deeds, the probability veyance of land from length of possession that a man in possession of land without evi. alone, and for this reason the charge was dence of conveyance has not received a con. erroneous. He also expressed his own views veyance is strong.
as to the possible relevancy of mere occupaMere possession, therefore, cannot be rele tion in proving the actual conveyance of vant to the fact of a conveyance by deed, al
land. It is this part of his argument which though it may become relevant to some one
the opinion of the majority restates with an of the facts sought to be established in prov.
implication of too broad approval. We caning the deed, and its relevancy and weight not be sure what number of the judges, in for that purpose must be determined by the granting a new trial, acted on the views of ordinary rules of evidence, and cannot be Judge Smith or Judge Gould. The case is confused with the theory of an arbitrary pre certainly not an authority upon any question sumption used in discussing prescription for except the proposition advanced by Judge incorporeal hereditaments. There is nothing
Swift. Its interest lies in the academic duel in our decisions to justify such a confusion,
between Judges Swift and Gould, as the indi. although some suggestion of an excuse for it vidual utterance of either is entitled to the may be found in the individual opinions of greatest deference. It is idle for present Chief Justice Swift and Judge Gould, re purposes to discuss their differences. Each, ported in Sumner v. Child, 2 Conn. 607, the to a certain extent, was looking at a differcase cited in the opinion of the majority of ent side of the shield, and neither kept clearthe court. The case is a peculiar one. From ly in mind the application of his general what appears to have been the substantially statements to the real facts of the case in conceded facts, the case is this: William hand. The confusing nature of the discusDudley acquired ownership of the land insion is indicated by the last retort of Swift, question. Upon his death his son, Joseph, en uttered in his "Digest," where, referring to tered into possession as heir, and remained Gould's opinion and the distinctions drawn in possession for 28 years, when his title by him, he says with his occasional unguardpassed to the defendant through the levy of ed vigor: "This is a new doctrine. It was an execution. The same year administration never before promulgated. No such distincwas granted on the estate of William Dud. tion can be found in any book. It is opposed ley, and in due course of proceeding the land to the decision of every case that has been was sold to pay William's debts. It was determined, and the dicta of every judge uppurchased by the plaintiff, who shortly after on the subject.” 1 Swift's Digest, 167. The brought the action of ejectment. Here was general trend of Judge Gould's opinion supno question of conveyance or adverse pos ports the views I have expressed, but there session. Joseph acquired ownership by de is uncertainty in the language used in disscent subject to the paramount authority of cussing the occupation of land merely as evi
dence. If that language cau fairly be treated, ultimate fact which must determine the relas stating that when a legal title to land evancy and materiality of the evidence rethrough a deed of conveyance is to be proved, jected. Upon the trial Julia's son, one of the the mere fact of possession or occupation of plaintiffs, was asked whether his father had that land by the claimed grantee has any ever done anything on or about the land durprobative force except as it may be relevant ing his mother's life. The question was er. to some fact in the case in accordance with cluded as immaterial. The ruling would the general rules for determining the rele seem unquestionably correct. It is claimed vancy of one fact to another, then the state it was relevant to the fact of possession by ment seems to me clearly inconsistent with Julia, but testimony of every fact tending to sound principle, and unsupported by authori. prove Julia's possession was admitted. Mere ty.
negative testimony that some one else did Applying to the facts of the present case nothing about the place is too remotely rethe ordinary rules of evidence, it seems clear lated to the fact of her possession to be that the rejected evidence was immaterial, admissible. and its rejection furnishes no ground for a It is claimed that the absence of acts of new trial. The facts are these: The record ownership by Julia's husband might chartitle to the land in question is in Wallace & acterize the nature of her possession as adSons, through a deed to them dated August verse to him. Possibly such negative conduct 29, 1873, from the grantee of an admitted by the husband might be relevant if the ques. owner. Julia and Richard Cahill, one or both, tion were whether an ownership by adverse were in possession from 1873 to the death of possession inured to the wife separately, or Julia, in 1885. From his wife's death Rich to the husband. But, as such question was ard was in possession, using the land as his excluded from the case by want of possession own, and mortgaging it as his own, until his of any kind for the requisite period, relevan. death, in 1901. The defendants are in pos cy on this ground is wholly immaterial. session as devisees of Richard. The plaintiffs Whether the actual occupation by Julia was claim as heirs of Julia Cahill. Richard, at adverse to her husband or not cannot effect the time of his death, had acquired a com its relevancy to the contents of the document plete title through adverse possession since which was operative as a conveyance to her, his wife's death, unless his possession was or not at all. through the right of another. The plaintiffs It is suggested that the court has found claim that Julia at her death was owner of that the husband was in possession, and, by the land, and Richard, until his death, con inference, that the wife was not, and might tinued in possession as tenant by the curtesy. not have made this finding if an answer to Their whole case rests upon maintaining this the question had been permitted. I think a claim, for, unless tenant by the curtesy, the negation of Julia's actual occupancy is not a title in Richard at his death is certain. Their proper inference from this finding, and that claim that, Julia being in possession at the it is controlled by a theory as to the legal eftime of her death, and for a long time be fect of acts of ownership by the wife, and not fore, the court should presume, in the ab. at all by any actual acts of ownership by the sence of countervailing testimony, a legal ti husband which were not claimed by the detle in her, was properly overruled, and may fendants to have been proved. But I prefer be laid out of the case. They attempted to to assume that the court did find that Julia prove ownership in Julia through adverse was not in possession, and that such finding possession, but, as there was no possession by might possibly have been influenced by the either Julia or Richard for more than 12 years negative testimony excluded; for this brings at the time of Julia's death, the court, for me to a consideration that renders all specuthis reason, was compelled to find she had no lation as to the possible materiality of that ownership through adverse possession. Any testimony to the fact of Julia's possession un. rulings on evidence as applicable to her title necessary. The fact of exclusive possession through adverse possession are, therefore, im. by Julia was wholly immaterial in view of material. There remained the claim of title the facts proved, and claimed to be proved, in Julia through a deed of conveyance, and in respect to the document in her possession. the plaintiffs: case then rested solely on the It appears from the finding of the court, the fact of conveyance.
statement of the facts on which the plaintiffs' The fact in issue is further narrowed claims of law were based, incorporated in the through the plaintiff's' introduction of evi. finding, and the plaintiffs' proposed draft for dence proving the possession by Julia at cer a finding, that all the subordinate facts prov. tain times between 1873 and 1885 of a docu. ed or claimed to have been proved by the tes. inent which they claim was a deed of convey. timony in respect to the deed of conveyance ance of the land in question to Julia, and were these: Julia on two or three occasions this document represented the only convey. held in her hand a document which she said ance claimed. Unless this document is prov. was a deed of her land. On one occasion she ed to have contained a valid conveyance to handed some papers to Mr. Webster to keep Julia, there is no foundation in the case for for her. He kept them some years, and subthe claim of her legal title. The document sequently returned them. Among these papers was not produced, and its contents, to be was a document which Mr. Webster testiproved by secondary evidence, constituted the fied was a deed to Julia Julia was in ac.
tual possession of the land from 1873 to 1885, Appeal from Superlor Court, New Haven claiming to be owner. These bald facts are County; Milton A. Shumway, Judge. all, and are clearly insufficient to prove a Election contest by John H. Flanagan conveyance from the owner of the land to against James A. Hynes. From a judgment Julia Cahill. It is enough that there is abso- declaring petitioner duly elected to the oflutely nothing to prove that any particular fice of registrar of voters for the town of Waperson, or any unnamed person, being owner terbury, defendant appeals. Affirmed. of the land, made any conveyance of any kind
John O'Neill, for appellant. Charles G. to Julia Cahill. Actual possession of the land
Root, Terrence F. Carmody, and John H. by her is immaterial, and wholly incompe
Cassidy, for appellee. tent to the proof of this fact; and without this fact, as well as others that are not proved, the acquirement of ownership by Julia PRENTICE, J. At the annual town elec. through a valid deed of conveyance has not tion held in the town of Waterbury on the been proved, and therefore the plaintiffs have
first Monday of October, 1902, the petitioner not established a legal title for themselves. and respondent were candidates for the ofIt follows that upon all the facts in the case, fice of registrar of voters. The one of them together with the fact which it is claimed who received tbe larger number of votes was the excluded testimony would prove, the judg.
entitled to be declared elected. The other ment of the trial court is the only one that was not. Twelve hundred and twenty-six can lawfully be rendered. Under these cir ballots were cast for the petitioner, of which cumstances the exclusion of the testimony, 19 were upon pasters; 1,134 were cast for even if theoretically erroneous, furnishes no the respondent, 4 being by pasters. The reground for a new trial.
spondent was declared elected. The 23 pasI dissent from the opinion of the majority
ter ballots, wbich were concededly valid, because I fear it liable to raise an unau. may, under the facts of the case, be disre. thorized and unnecessary doubt as to the garded. All the other ballots, whether cast clear distinctions under our law in respect to
for the petitioner or the respondent, were the acquirement of ownership in land through identical in all respects, save that the name conveyance and its acquirement through ad
of the petitioner appeared upon some, and verse possession, and which control the rele that of the respondent upon others, as the vancy and materiality of mere possession in
candidate for registrar of voters. All of proving a legal title through either mode of
these ballots confessedly complied with the acquisition. I dissent from the result be requirements of statute, and were altogether cause it seems to me clear that it grants a
free from objection, save in one particular, new trial for the exclusion of testimony,
which remains to be noticed. Both sets of which, if admitted, could not lawfully have
ballots were headed with the word “Demo. induced a different judgment.
cratic." The claim was made at the count, I think there is no error in the judgment and is now made, that this use of the word of the superior court.
"Democratic" upon the ballots containing the petitioner's name invalidated them. The
moderators in four of the six voting dis(75 Conn. 584)
tricts sustained this claim, and rejected all FLANAGAN V. HYNES.
of said ballots cast therein for the petitioner
as void, tbus accomplishing his defeat. The (Supreme Court of Errors of Connecticut.
judge before whom the petition was heard April 17, 1903.)
has declared them valid, and adjudged the ELECTIONS CANDIDATES NOMINATIONS
petitioner elected. The single question thus BALLOTS-PREPARATION-PARTY NAME-USE.
presented for our decision is as to whether or 1. Under the rules of a political party, pom not the presence of the word “Democratic" inations for registrar of voters were made at a
upon the petitioner's ballots rendered them special conventiou held in May, 1901, consisting of the members of the Democratic city com
void. mittee and the Democratic holders of certain The objection to the rejected ballots rests designated offices. This convention nominated
upon the claim that the petitioner was not defendant for such office. The first town con
the rightful candidate of the Democratic vention after the consolidation of the city and county governmeuts by Pub. Acts 1901, p. 1375, party. The petitioner was placed in nominac. 176, was held the succeeding October, and tion at the regular convention held on Ocrescinded the previous rule for the nomination
tober 3, 1902, for the nomination of Demo. of register of voters at a special convention, and thereafter nominated petitioner for that
cratic candidates for the coming town elecoffice. The chairman of the Democratic town tion. This convention was duly called and committee refused to recognize petitioner's constituted. It was the only convention held nomination, and the ballots issued by the chair. man contained defendant's name only, where
for the purpose, and nominated all the other upon petitioner caused other ballots to be is
Democratic candidates. The rules for the sued, coutaining his name as a candidate for government of the party which had been such office, under the title "Democratic.". Held, adopted by the town convention held in the that no provision having been made for the determination of the contest, except at the polls,
fall of 1901, and before the act of 1901 regu. petitioner was justified in offering such ballots
lating caucuses and primaries (Puh. Acts at the poles.
1901, p. 1375, c. 176) went into operation, pre54 A.-47
scribed the officers who should be noininated recently their provisions were comparatively at town conventions. The registrar of vot few and simple, and, for the most part, were ers was not included. The rules also pro concerned with the machinery and methods vided for city conventions, wherein should for the convenient and orderly expression of be nominated candidates for city offices. the will of the voters as they should choose The power to legislate for the party was to express it, and safeguarding the result as expressly reserved to the city conventions. expressed. Of late, legislation has sougbt The nomination of registrar of voters was, not only to register and safeguard the will of under the rules, to be made at neither of the voters as expressed, but, as far as possithese conventions of delegates selected at / ble, to secure an expression which should primaries, but at a special convention to be represent the true will of the voters, unafheld in May, constituted of the members of fected by corruption, intimidation, undue inthe Democratic city committee and the Dem- fluence, or deception. Such an attempt necocratic holders of certain designated offices. essarily involves many commandments whose This latter body met in May, 1901, as pro
“thou shalts" and “thou shalt nots" multiply vided by the rules, and nominated the re
or less complicated system. spondent. The town convention assembled These commandments, to be effective, inon October 3, 1901, as aforesaid, which was volve penalties which oftentimes can only be the first held since the consolidation of the imposed by a rejection of ballots. The recity and town governments, and also the jection of ballots ordinarily signifies the disfirst held since said caucus act of 1901 went franchisement of the voters whose ballots into operation. After nominating candidates they are. Circumstances may justify this for all the offices to be voted for, except disfranchisement as a necessary incident of that of registrar of voters, it rescinded the an attempt to obtain an honest and true exrule adopted by the town convention of the pression of the popular will. The danger of year previous, providing for the nomination such a system, however, is that the disfranof the registrar of voters at a special con
chisement will extend to the honest voter, vention in May, and thereupon placed the pe honestly attempting to exert his influence titioner in nomination for that office. The upon the election result. When such a result chairman of the Democratic town committee is accomplished, a grievous wrong is done refused to recognize the petitioner's nomina
to the citizen whose right is taken away. tion, and recognized the respondent as the
When it is done to any great extent, the sysrightful candidate of the party. The ballots tem is put in serious jeopardy of being so issued by him contained the latter's name.
used as to defeat its real ends. Statutes are The petitioner, in this situation, caused the to be interpreted and applied with a regard ballots to be printed and circulated which for the purposes which they are intended to are under review.
accomplish, and the evils they are intended There is no question made of the petition
to avert. There is no kind of legislation uner's good faith in his issuance of the ballots der a popular government to which this bearing his name and the Democratic desig- principle should be more consistently applied nation; nor is any claim made that they
than that which seeks to regulate the exerwere used or cast with any unlawful pur
cise of the right of suffrage. If there is to pose, or with any intent to deceive or de be disfranchisement, it should be because the fraud, or in any way evade either the express
Legislature has seen fit to require it, in the provisions or the underlying purposes of the
interest of an honest suffrage, and has exballot law. The sole objection to the ballots pressed that requirement in unmistakable is that they did not in fact comply with legal language. It should not result from doubtrequirements, and therefore should have been ful judicial construction, from a too strict rejected. A glance at the recital of the facts regard for the mere letter of the statutes or is sufficient to make it clear that the situa
from a resort to nice or technical refinements tion out of which the trouble arose was a in either interpretation or application. State factional dispute within the Democratic party
v. Bossa, 69 Conn. 335, 37 Atl. 977. organization over its nomination for an of If we look at the situation disclosed by the fice. The petitioner and respondent each record, it is apparent that the ballots cast claimed, and now claim, that he was the for the petitioner were issued and cast in rightful nominee. These claims have been good faith, and with no intent to violate eiargued before us, and on behalf of the re ther the letter or the spirit of the law. The spondent we are asked not only to decide refusal of the party chairman to recognize this issue in his favor, but, having done so, him as the party candidate compelled him to to declare that the ballots for the petitioner either tamely submit or do precisely as he did. were therefore necessarily void. This posi The law made no provision for the timely set. tion of the respondent assumes too much. It tlement of the dispute. He made use of the involves a distinct misapprehension of the party designation under a claim of right, and proper attitude of courts in interpreting and with a color of right. He was not a self-namapplying the provisions of ballot laws. Such ed nominee. He was not the nominee of a laws have for their ultimate purpose the self-appointed committee, or of a faction or registration of the popular will upon the gathering which could have no claim to any questions submitted for decision. Until quite | party designation. He was not the nominee
or pretended nominee of some party organization which had no right to the Democratic name. He was placed in nomination by the regular Democratic convention, composed of delegates regularly chosen at the regular Democratic primaries of the enrolled Democratic voters of the town. His right, whatever it was, came from unquestioned Democratic sources. His claim was founded upon the action of the organization of the Democratic party. To say that under such circumstances he had no alternative but to yield to the decision of the party chairman, and that his assertion, without the chairman's consent, and in the only way open to him of his claim to the benefit of a domination which he contended that he had rightfully received, was in violation of the law, and rendered invalid every straight ballot cast for him, is to contend for a principle of construction which might easily lead to results which would be subversive of the very purpose of the election system.
It may be that the petitioner's claim to the nomination was not technically sound. It may be that the respondent had a better right to have his name appear upon the party ticket. We have no need to decide that question. All that it is necessary to say is that under the circumstances the petitioner was fully justified in carrying his contention to the polls in the manner he did. This was a factional dispute within the party organization. Such are bound to arise. They may relate to the regularity of party organization or party action, or, as in this case, a party nomination. There is no machinery provided by our law, whether judicial or otherwise, to make a settlement, or at least a timely settlement, of many of them. The verdict of the voter must, for the most part, sooner or later decide the controversy. Meanwhile there is no law which directs that one who fairly and in good faith asserts at the polls, by the use of the party name, his claim to party regularity or a party nomination, if that claim is made honestly and upon a reasonable foundation of fact, does so at the peril of disfranchisement for himself and his supporters if a moderator, or, in the final event, a court, fails to confirm his contention.
There is no error. The other Judges concurred.
title of real estate." Pub. Acts 1887, p. 749, c. 127. Section 2322, in describing the real estate liable to taxation, provides that "quarries, mines and ore beds, whether owned in fee or leased, shall be set in the list separately, at their present true and actual valuation.' Section 2341 provides that “an estate for years by gift or devise, and not by contract, shall be set in the list of the person in possession there. of." The owner of land leased the same for a term of 40 years "for the purpose of mining garnets thereon"; the lessee to pay a fixed annual rent, with the right to remove the mineral only during the term, which could be forfeited by the lessor for nonpayment of rent, Held not such an interest in land as, under the statutes, was taxable as the property of the lessees, the language of section 2341 clearly showing that it was not intended by the language of section 2299 to require estates for years by contract to be listed for taxation in the name of the owner of such chattel interest.
2. The voluntary appearance of plaintiff before the board of relief in response to a notice of such board that he appear and show cause why certain property should not be added to his list, where, without objection to such notice, he was fully heard on the merits of the matter in question, obviated any defect in the notice required by statute, and all evidence tending to show that plaintiff was inconvenienced by reason of the shortness of the notice was properly rejected.
3. Gen. St. 1902, § 2346, provides that the board of relief shall complete its duties by the fourth Monday of February. No other notice or announcement of the decision of the board in adding certain property to plaintiff's list was given than by returning to the town clerk's office on the 28th of February, 1902, the book prepared by the assessors as the abstract of the list of taxpayers, with the certificate of the board attached thereto, stating that the alterations, additions, and deductions made by it were as appeared in such book. Held not such a failure to complete its duties by the fourth Monday of February as rendered its action iuvalid.
4. Gen. St. 1902, § 2348, provides that the board of relief shall not reduce the list of any person not a resident of the state, who shall not appear, either in person or by his attorney or agent, and offer to be sworn before them and answer all questions touching his taxable property situate in the town. Plaintiff leased a garnet quarry for a term of years to a nonresident firm. Held, that the validity of the act of the board of relief in adding the quarry to plaintiff's list was not affected by the fact that it was also erased from the list of such nonresident partners, though they did not appear before the board.
Appeal from Superior Court, Litchfield County; George W. Wheeler, Judge.
Action in the nature of an appeal from the doings of the board of relief of the town of Roxbury. Judgment for defendant, and plaintiff appeals. Affirmed.
Frederic M. Williams, for appellant. Arthur D. Warner and James Huntington, for appellee.
(75 Conn. 590)
Appeal of SANFORD. (Supreme Court of Errors of Connecticut.
April 17, 1903.) TAXATION - REAL PROPERTY TAXABLE INTEREST IN LAND-ESTATE FOR YEARS-NO. TICE TO OWNER-WAIVER-BOARD OF RELIEF-RETURN-APPEARANCE OF NONRESIDENT OWNER.
1. Gen. St. 1902, § 2299, provides that "any interest in real estate listed for taxation shall be set by the assessors in the list of the party in whose name the title to such interest stands, and is part of an act passed in 1887 entitled "An act concerning the taxation and record of
HALL, J. In 1894 and 1895 the plaintiff, who is a resident of Roxbury, in this state, leased for the term of 40 years to one Phillips, by two written leases, containing similar provisions, about 12 acres of land in said Roxbury containing mineral deposits called "garnets." By various duly recorded assignments, H. Behr & Co., a copartnership, the