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Mere possession is in no sense evidence of a conveyance, real or fictitious; on the contrary, its efficacy depends on the assumption that the title by conveyance is in some one else. Possession of the requisite kind, for the requisite period, is the thing to be established by evidence, and, when established by evidence, this thing, viz., this 15 years of adverse possession, directly extinguishes the former ownership, and directly invests the person in occupation at the termination of the statutory period, not with the title of the former owner, but with a new ownership acquired through this distinct mode. (2) In establishing a legal title acquired through conveyance, possession, occupancy, acts of ownership may or may not, according to the circumstances of each case, be relevant to some fact tending to prove the conveyance through which ownership is claimed. In no other way is there any substantial, evidential relation between the mere fact of an actual occupation of land and the fact of a deed validly conveying that land to the occupant. This is unquestionable, unless it be true that, when a person claiming to be owner of land, but unable to produce evidence of conveyance, is in possession for less than 15 years, the natural inference is that he has received a deed of that land; but the natural inference in such case is precisely the opposite. In view of our law regulating the making and record of deeds, the probability that a man in possession of land without evidence of conveyance has not received a conveyance is strong.

Mere possession, therefore, cannot be relevant to the fact of a conveyance by deed, although it may become relevant to some one of the facts sought to be established in proving the deed, and its relevancy and weight for that purpose must be determined by the ordinary rules of evidence, and cannot be confused with the theory of an arbitrary presumption used in discussing prescription for incorporeal hereditaments. There is nothing in our decisions to justify such a confusion, although some suggestion of an excuse for it may be found in the individual opinions of Chief Justice Swift and Judge Gould, reported in Sumner v. Child, 2 Conn. 607, the case cited in the opinion of the majority of the court. The case is a peculiar one. From what appears to have been the substantially conceded facts, the case is this: William Dudley acquired ownership of the land in question. Upon his death his son, Joseph, entered into possession as heir, and remained in possession for 28 years, when his title passed to the defendant through the levy of an execution. The same year administration was granted on the estate of William Dudley, and in due course of proceeding the land was sold to pay William's debts. It was purchased by the plaintiff, who shortly after brought the action of ejectment. Here was no question of conveyance or adverse possession. Joseph acquired ownership by descent subject to the paramount authority of

the law to appropriate the land to the payment of debts in administering his father's estate. If the grant of administration and the proceedings under it were valid, the plaintiff had a legal title; if they were not valid, the defendant had a good title. The title depended solely on the validity of the administration proceedings. As the decrees of the probate court had not been appealed from, the defendant could not attack their validity in the ejectment suit. He therefore relied upon the claim that the long delay in taking out administration should have the same effect as a release from the creditors of Joseph, and that the fiction of an imaginary grant, proved by immemorial usage or possession, was applicable to this case, and the court in substance charged the jury that they might presume a title in the defendant from length of possession alone. A majority of the judges of this court held that such instruction was erroneous. No opinion of the court was given. Three of the judges expressed their views. The chief justice, who tried the cause below, warmly defended his charge. Judge Smith argued that the charge was erroneous, because possession had nothing to do with the title, as that must depend wholly on the validity of the administration proceedings. Judge Gould directly attacked the general proposition of Judge Swift, arguing that the jury could not presume a conveyance of land from length of possession alone, and for this reason the charge was erroneous. He also expressed his own views as to the possible relevancy of mere occupation in proving the actual conveyance of land. It is this part of his argument which the opinion of the majority restates with an implication of too broad approval. We cannot be sure what number of the judges, in granting a new trial, acted on the views of Judge Smith or Judge Gould. The case is certainly not an authority upon any question except the proposition advanced by Judge Swift. Its interest lies in the academic duel between Judges Swift and Gould, as the individual utterance of either is entitled to the greatest deference. It is idle for present purposes to discuss their differences. Each, to a certain extent, was looking at a different side of the shield, and neither kept clearly in mind the application of his general statements to the real facts of the case in hand. The confusing nature of the discussion is indicated by the last retort of Swift, uttered in his "Digest," where, referring to Gould's opinion and the distinctions drawn by him, he says with his occasional unguarded vigor: "This is a new doctrine. It was never before promulgated. No such distinction can be found in any book. It is opposed to the decision of every case that has been determined, and the dicta of every judge upon the subject." 1 Swift's Digest, 167. general trend of Judge Gould's opinion supports the views I have expressed, but there is uncertainty in the language used in discussing the occupation of land merely as evi

The

dence. If that language cau fairly be treated as stating that when a legal title to land through a deed of conveyance is to be proved, the mere fact of possession or occupation of that land by the claimed grantee has any probative force except as it may be relevant to some fact in the case in accordance with the general rules for determining the relevancy of one fact to another, then the statement seems to me clearly inconsistent with sound principle, and unsupported by authority.

Applying to the facts of the present case the ordinary rules of evidence, it seems clear that the rejected evidence was immaterial, and its rejection furnishes no ground for a new trial. The facts are these: The record title to the land in question is in Wallace & Sons, through a deed to them dated August 29, 1873, from the grantee of an admitted owner. Julia and Richard Cahill, one or both, were in possession from 1873 to the death of Julia, in 1885. From his wife's death Richard was in possession, using the land as his own, and mortgaging it as his own, until his death, in 1901. The defendants are in possession as devisees of Richard. The plaintiffs claim as heirs of Julia Cahill. Richard, at the time of his death, had acquired a complete title through adverse possession since his wife's death, unless his possession was through the right of another. The plaintiffs claim that Julia at her death was owner of the land, and Richard, until his death, continued in possession as tenant by the curtesy. Their whole case rests upon maintaining this claim, for, unless tenant by the curtesy, the title in Richard at his death is certain. Their claim that, Julia being in possession at the time of her death, and for a long time before, the court should presume, in the absence of countervailing testimony, a legal title in her, was properly overruled, and may be laid out of the case. They attempted to prove ownership in Julia through adverse possession, but, as there was no possession by either Julia or Richard for more than 12 years at the time of Julia's death, the court, for this reason, was compelled to find she had no ownership through adverse possession. Any rulings on evidence as applicable to her title through adverse possession are, therefore, immaterial. There remained the claim of title in Julia through a deed of conveyance, and the plaintiffs' case then rested solely on the fact of conveyance.

The fact in issue is further narrowed through the plaintiffs' introduction of evidence proving the possession by Julia at certain times between 1873 and 1885 of a document which they claim was a deed of conveyance of the land in question to Julia, and this document represented the only conveyance claimed. Unless this document is proved to have contained a valid conveyance to Julia, there is no foundation in the case for the claim of her legal title. The document was not produced, and its contents, to be proved by secondary evidence, constituted the

ultimate fact which must determine the relevancy and materiality of the evidence rejected. Upon the trial Julia's son, one of the plaintiffs, was asked whether his father had ever done anything on or about the land during his mother's life. The question was exIcluded as immaterial. The ruling would seem unquestionably correct. It is claimed it was relevant to the fact of possession by Julia, but testimony of every fact tending to prove Julia's possession was admitted. Mere negative testimony that some one else did nothing about the place is too remotely related to the fact of her possession to be admissible.

It is claimed that the absence of acts of ownership by Julia's husband might characterize the nature of her possession as adverse to him. Possibly such negative conduct by the husband might be relevant if the question were whether an ownership by adverse possession inured to the wife separately, or to the husband. But, as such question was excluded from the case by want of possession of any kind for the requisite period, relevancy on this ground is wholly immaterial. Whether the actual occupation by Julia was adverse to her husband or not cannot effect its relevancy to the contents of the document which was operative as a conveyance to her, or not at all.

It is suggested that the court has found that the husband was in possession, and, by inference, that the wife was not, and might not have made this finding if an answer to the question had been permitted. I think a negation of Julia's actual occupancy is not a proper inference from this finding, and that it is controlled by a theory as to the legal effect of acts of ownership by the wife, and not at all by any actual acts of ownership by the husband which were not claimed by the defendants to have been proved. But I prefer to assume that the court did find that Julia was not in possession, and that such finding might possibly have been influenced by the negative testimony excluded; for this brings me to a consideration that renders all speculation as to the possible materiality of that testimony to the fact of Julia's possession unnecessary. The fact of exclusive possession by Julia was wholly immaterial in view of the facts proved, and claimed to be proved, in respect to the document in her possession. It appears from the finding of the court, the statement of the facts on which the plaintiffs' claims of law were based, incorporated in the finding, and the plaintiffs' proposed draft for a finding, that all the subordinate facts proved or claimed to have been proved by the testimony in respect to the deed of conveyance were these: Julia on two or three occasions held in her hand a document which she said was a deed of her land. On one occasion she handed some papers to Mr. Webster to keep for her. He kept them some years, and subsequently returned them. Among these papers was a document which Mr. Webster testified was a deed to Julia. Julia was in ac

tual possession of the land from 1873 to 1885, claiming to be owner. These bald facts are all, and are clearly insufficient to prove a conveyance from the owner of the land to Julia Cahill. It is enough that there is absolutely nothing to prove that any particular person, or any unnamed person, being owner of the land, made any conveyance of any kind to Julia Cahill. Actual possession of the land by her is immaterial, and wholly incompetent to the proof of this fact; and without this fact, as well as others that are not proved, the acquirement of ownership by Julia through a valid deed of conveyance has not been proved, and therefore the plaintiffs have not established a legal title for themselves. It follows that upon all the facts in the case, together with the fact which it is claimed the excluded testimony would prove, the judgment of the trial court is the only one that can lawfully be rendered. Under these circumstances the exclusion of the testimony, even if theoretically erroneous, furnishes no ground for a new trial.

I dissent from the opinion of the majority because I fear it is liable to raise an unauthorized and unnecessary doubt as to the clear distinctions under our law in respect to the acquirement of ownership in land through conveyance and its acquirement through adverse possession, and which control the relevancy and materiality of mere possession in proving a legal title through either mode of acquisition. I dissent from the result because it seems to me clear that it grants a new trial for the exclusion of testimony, which, if admitted, could not lawfully have induced a different judgment.

I think there is no error in the judgment of the superior court.

(75 Conn. 584)

FLANAGAN v. HYNES. (Supreme Court of Errors of Connecticut. April 17, 1903.)

ELECTIONS

CANDIDATES NOMINATIONS-
BALLOTS-PREPARATION-PARTY
NAME-USE.

1. Under the rules of a political party, nominations for registrar of voters were made at a special convention held in May, 1901, consisting of the members of the Democratic city committee and the Democratic holders of certain designated offices. This convention nominated defendant for such office. The first town convention after the consolidation of the city and county governments by Pub. Acts 1901, p. 1375, c. 176, was held the succeeding October, and rescinded the previous rule for the nomination of register of voters at a special convention, and thereafter nominated petitioner for that office. The chairman of the Democratic town committee refused to recognize petitioner's nomination, and the ballots issued by the chairman contained defendant's name only, whereupon petitioner caused other ballots to be issued, containing his name as a candidate for such office, under the title "Democratic." Held, that no provision having been made for the determination of the contest, except at the polls, petitioner was justified in offering such ballots at the poles.

54 A.-47

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Election contest by John H. Flanagan against James A. Hynes. From a judgment declaring petitioner duly elected to the office of registrar of voters for the town of Waterbury, defendant appeals. Affirmed.

John O'Neill, for appellant. Charles G. Root, Terrence F. Carmody, and John H. Cassidy, for appellee.

PRENTICE, J. At the annual town election held in the town of Waterbury on the first Monday of October, 1902, the petitioner and respondent were candidates for the office of registrar of voters. The one of them who received the larger number of votes was entitled to be declared elected. The other was not. Twelve hundred and twenty-six ballots were cast for the petitioner, of which 19 were upon pasters; 1,134 were cast for the respondent, 4 being by pasters. The respondent was declared elected. The 23 paster ballots, which were concededly valid, may, under the facts of the case, be disregarded. All the other ballots, whether cast for the petitioner or the respondent, were identical in all respects, save that the name of the petitioner appeared upon some, and that of the respondent upon others, as the candidate for registrar of voters. All of these ballots confessedly complied with the requirements of statute, and were altogether free from objection, save in one particular, which remains to be noticed. Both sets of ballots were headed with the word "Democratic." The claim was made at the count, and is now made, that this use of the word "Democratic" upon the ballots containing the petitioner's name invalidated them. The moderators in four of the six voting districts sustained this claim, and rejected all of said ballots cast therein for the petitioner as void, thus accomplishing his defeat. The judge before whom the petition was heard has declared them valid, and adjudged the petitioner elected. The single question thus presented for our decision is as to whether or not the presence of the word "Democratic" upon the petitioner's ballots rendered them void.

The objection to the rejected ballots rests upon the claim that the petitioner was not the rightful candidate of the Democratic party. The petitioner was placed in nomination at the regular convention held on October 3, 1902, for the nomination of Demo cratic candidates for the coming town election. This convention was duly called and constituted. It was the only convention held for the purpose, and nominated all the other Democratic candidates. The rules for the government of the party which had been adopted by the town convention held in the fall of 1901, and before the act of 1901 regulating caucuses and primaries (Pub. Acts 1901, p. 1375, c. 176) went into operation, pre

scribed the officers who should be nominated at town conventions. The registrar of voters was not included. The rules also provided for city conventions, wherein should be nominated candidates for city offices. The power to legislate for the party was expressly reserved to the city conventions. The nomination of registrar of voters was, under the rules, to be made at neither of these conventions of delegates selected at primaries, but at a special convention to be held in May, constituted of the members of the Democratic city committee and the Democratic holders of certain designated offices. This latter body met in May, 1901, as provided by the rules, and nominated the respondent. The town convention assembled on October 3, 1901, as aforesaid, which was the first held since the consolidation of the city and town governments, and also the first held since said caucus act of 1901 went into operation. After nominating candidates for all the offices to be voted for, except that of registrar of voters, it rescinded the rule adopted by the town convention of the year previous, providing for the nomination of the registrar of voters at a special convention in May, and thereupon placed the petitioner in nomination for that office. The chairman of the Democratic town committee refused to recognize the petitioner's nomination, and recognized the respondent as the rightful candidate of the party. The ballots issued by him contained the latter's name. The petitioner, in this situation, caused the ballots to be printed and circulated which are under review.

There is no question made of the petitioner's good faith in his issuance of the ballots bearing his name and the Democratic designation; nor is any claim made that they were used or cast with any unlawful purpose, or with any intent to deceive or defraud, or in any way evade either the express provisions or the underlying purposes of the ballot law. The sole objection to the ballots is that they did not in fact comply with legal requirements, and therefore should have been rejected. A glance at the recital of the facts is sufficient to make it clear that the situation out of which the trouble arose was a factional dispute within the Democratic party organization over its nomination for an office. The petitioner and respondent each claimed, and now claim, that he was the rightful nominee. These claims have been argued before us, and on behalf of the respondent we are asked not only to decide this issue in his favor, but, having done so, to declare that the ballots for the petitioner were therefore necessarily void. This position of the respondent assumes too much. It involves a distinct misapprehension of the proper attitude of courts in interpreting and applying the provisions of ballot laws. Such laws have for their ultimate purpose the registration of the popular will upon the questions submitted for decision. Until quite

recently their provisions were comparatively few and simple, and, for the most part, were concerned with the machinery and methods for the convenient and orderly expression of the will of the voters as they should choose to express it, and safeguarding the result as expressed. Of late, legislation has sought not only to register and safeguard the will of the voters as expressed, but, as far as possible, to secure an expression which should represent the true will of the voters, unaffected by corruption, intimidation, undue influence, or deception. Such an attempt necessarily involves many commandments whose "thou shalts" and "thou shalt nots" multiply into a more or less complicated system. These commandments, to be effective, involve penalties which oftentimes can only be imposed by a rejection of ballots. The rejection of ballots ordinarily signifies the disfranchisement of the voters whose ballots they are. Circumstances may justify this disfranchisement as a necessary incident of an attempt to obtain an honest and true expression of the popular will. The danger of such a system, however, is that the disfranchisement will extend to the honest voter, honestly attempting to exert his influence upon the election result. When such a result is accomplished, a grievous wrong is done to the citizen whose right is taken away. When it is done to any great extent, the system is put in serious jeopardy of being so used as to defeat its real ends. Statutes are to be interpreted and applied with a regard for the purposes which they are intended to accomplish, and the evils they are intended to avert. There is no kind of legislation under a popular government to which this principle should be more consistently applied than that which seeks to regulate the exercise of the right of suffrage. If there is to be disfranchisement, it should be because the Legislature has seen fit to require it, in the interest of an honest suffrage, and has expressed that requirement in unmistakable language. It should not result from doubtful judicial construction, from a too strict regard for the mere letter of the statutes or from a resort to nice or technical refinements in either interpretation or application. State v. Bossa, 69 Conn. 335, 37 Atl. 977.

If we look at the situation disclosed by the record, it is apparent that the ballots cast for the petitioner were issued and cast in good faith, and with no intent to violate either the letter or the spirit of the law. The refusal of the party chairman to recognize him as the party candidate compelled him to either tamely submit or do precisely as he did. The law made no provision for the timely settlement of the dispute. He made use of the party designation under a claim of right, and with a color of right. He was not a self-named nominee. He was not the nominee of a self-appointed committee, or of a faction or gathering which could have no claim to any 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 nomination 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.

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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 thereof." 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 invalid.

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.

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

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