Townsend Savings Bank v. Todd

47 Conn. 190

• Court: Supreme Court of Connecticut
• Decided: June 15, 1879
• Status: Published

Opinion

Granger, J.

Numerous questions are made in this case, which we will consider in their order.

1. It is claimed on the part of the defendants that the suit could not originally have been brought by the Townsend Savings Bank and the other plaintiffs, Alfred Todd and Theron A. Todd, as joint plaintiffs, and that therefore the court below had no power to allow the amendment by which the last named parties were made plaintiffs.

The act of 1875, under which the amendment was made, is as follows:—“In all suits whei’e a cause of action shall be sustained in favor of or against a part of the parties thereto, judgment may be rendered in favor of or against such parties only; * * * and additional parties may be made plaintiffs by way of amendment, and additional defendants may be cited to appear therein, upon such notice and such payment of costs by the plaintiff, as the court may prescribe.” Acts of 1875, p. 81.

It is contended that this statute, being an amendment of the 12th section of chapter 14 of the act with regard to civil actions (Gen. Statutes, p. 444,) is applicable only to suits upon contracts, where it is uncertain beforehand whether the right or liability is a joint or a several one—or, if joint, whether it is so as to all the plaintiffs, or all the defendants, or only as to a part of them. But it is not clear that the original statute was intended to have this narrow application.- It speaks only of “a cause of action,” without in terms limiting it to causes of action upon contracts, and while the more liberal construction falls in with the language used, we think it falls in with the apparent intent of the legislature far more than the restricted one claimed. The whole course of our legislation has been in the direction of simple practice, and against technical formalities, and we feel bound therefore to construe this remedial statute liberally, and especially not to restrict its meaning in the face of the language used in it.

2. The defendants next contend that the case should b°e stricken from the docket, because the receivers of the savings bank never authorized the institution of the suit in its name by Alfred Todd, and that if they had done so it would not have been sufficient without an order of the court giving them authority to bring the suit or allow it to be brought.

With regard to the assent of the receivers, it is clear that one given informally, and by the receivers acting separately, was sufficient. No title passed or was expected to pass, no right of any kind was affected or was expected to be affected, by their action. They simply consented that Alfred Todd might bring a suit in the name of the bank, at his own expense, to recover possession of property which was equitably his, and to which the bank had only a bare legal title if any, and which therefore did not in any proper sense constitute assets in their hands. And the same considerations make it clear that it was not necessary that an order of the court should be obtained before the suit was brought. This order would be necessary only to empower the receivers to institute a suit in tlieir own name as receivers. If they already had the power under the statute authorizing their appointment, no such order would be necessary, except perhaps for the purposes of supervision by the court of all their proceedings, and the protection of the assets from waste by unnecessary or improper suits. But here the suit was brought, not in the name of the receivers but of the bank, and wholly at the expense and risk of Alfred Todd. If he had the equitable title to the property while a bare legal title remained in the bank, he would have had the right to use the name of the bank, without the consent of the receivers or the bank—certainly upon securing them against cost. It is a well settled rule that in any case where a bare legal title is held in trust, as where a grantor has conveyed to a grantee while the land was adversely held, the grantee may sue in law for the possession in the name of the grantor. He could of course go into a court of equity, if the case admitted of it, in his own name, but an action at law could be brought only in the name of the party holding the legal title; and the name of such party the cestui que trust has a right to use. Wade v. Lindsey, 6 Met., 413, 414; Jackson v. Leggett, 7 Wend., 380; Stocktons. Williams, 1 Doug. (Mich.), 547; University of Vermont v. Joslyn, 21 Verm., 52, 62; Edwards v. Parkhurst, 21 Verm., 472; Wilson v. Nance, 11 Humph., 191. But even if the suit could not have been brought in the name of the bank, and standing solely in their names as plaintiffs would have been liable to be stricken from the docket, yet with Alfred Todd and Theron A Todd as additional plaintiffs there can be nothing in this objection that stands in the way of a judgment in their favor.

3. It is next objected that there has been no ouster—a proper demand of possession and a refusal to give possession being necessary to the ouster.

It is first said that the demand was made by Alfred and Theron Todd upon Milo Todd, one of the defendants, not upon any title of their own, but upon the title of the bank under the mortgage. If the bank held the legal title and they only the equitable title, the demand of possession was properly made in tlie name of the bank, and they, as owning the equitable title, would be authorized to make the formal demand in the name of the bank. If they would not be so authorized as matter of law, yet there is a fair presumption that such authority was in fact given, there being nothing found to the contrary.

It is then claimed that the demand was not a legal one, because it was for the possession of the whole property, while the defendants own an undivided seven-eighths of it as tenants in common with them or the bank, and the demand should therefore have been to be let into joint possession with the defendants.

But the question whether the defendants own the seven-eighths depends upon the validity of the tax title conveyed or claimed to have been conveyed, by the tax collector to George W. Jones, under whom the defendants claim. This title will be hereinafter considered. If valid it constitutes a defence of itself, and we may therefore lay it out of the case in considering the objection now made.

It is then claimed that demand of possession was made only upon Milo A. Todd, and that none was made on Mrs. Todd, who was the real owner. But in ejectment it is not necessary that the demand be made on the real owner. It must be made on the person in possession. Here Milo Todd and his wife were in joint possession, and a demand in such case on him alone was sufficient. It can not affect the case that the fee was in his wife.

4. It is next contended by the defendants that the plaintiffs have no title to the demanded premises.

And in the first place they claim that the deed of the bank to Milo Todd, of March 2d, 1869, released to him the gristmill property, which is the property in dispute. But, while the deed is very awkwardly expressed, it is we think quite clear that it not only was intended to release, but does in fact release, only the right to take water from the flume for the paper mill owned by Todd on the stream below the dam.

It is then said that the bank mortgage was satisfied by the Alfred Todd mortgage of July 3d, 1871, and therefore could not have been foreclosed by the bank in 1872. But if the mortgage was satisfied, it was yet an outstanding legal title in the bank, which if not released or conveyed would be sufficient to enable the bank to maintain ejectment, and which, having been conveyed to Alfred Todd on the 11th of May, 1877, by the receivers, gives him a sufficient legal title to enable him to maintain the suit.

It is further said by the defendants that Alfred Todd could not have recovered because he did not take an assignment of the mortgage when he took his quitclaim deed from the bank, and that Theron Todd taking title from him can not now recover. But the quitclaim deed conveyed the legal title held by the bank, and that is sufficient to' recover upon in ejectment.

5. The defendants then set up their own title to seven-eighths of the grist-mill property.

Whatever title they have is derived vfrom the tax title conveyed to George W. Jones by Tuttle, the tax collector, by deed dated September 1st, 1874. This title is assailed by the plaintiffs on numerous grounds, but there is one defect in it which is fatal to its validity, and this alone we will consider.

The statute which authorizes the levy of a tax warrant on the real estate of the tax debtor and its sale for the taxes (Gen. Statutes, 164, sec. 17,) provides that the tax collector shall “ sell at public auction enough of said estate to pay the taxes and costs chargeable against the owner, and execute and deliver a deed thereof to the purchaser.” This statute authorizes only a sale of such a designated portion of the real estate as may be necessary, and not a sale of an undivided interest, unless perhaps in those cases where the interest of the debtor is already an undivided one. It is not in the power of the officer thus to create a tenancy in common against the will of the owner of the land. He acts in hostility to the latter, and must pursue his authority literally. This principle is amply sustained by the authorities. Loud v. Penniman, 19 Pick., 539; Wall v. Wall, 124 Mass., 65; Hodge v. Wilson, 12 Smedes & Marsh., 498; Burroughs- on Taxation, 305; Blackwell on Tax Titles, 283. As the collector had no power to sell an undivided interest the sale was absolutely void.

While it is not necessary for us to consider other objections to the tax title, there is yet one upon which we feel it our duty to remark.

It appears that at the auction sale by the collector and before the property was put up for sale, the collector requested Jones, who was attending as a bidder, and finally bought the seven-eighths which were sold, not to bid on the property, as a Mr. Morse wanted it and was present to bid for it, and he desired to have him have it. It is however found that the collector in saying this was acting in good faith. It is difficult to see how such a thing could be done in good faith, but we suppose the finding to mean that he had no actual intent to commit a fraud. The act was one however which the law would look upon as a gross violation of duty, and no ignorance of his duty on the part of the collector, or absence of a positively fraudulent intent, can excuse it. The collector was proceeding to sell the property of a tax-payer for his taxes—a power necessarily given to the cities and towns of the state, and vital to the existence of government, but one that should be exercised by the agents of the law with the utmost fairness, and with constant regard both to the requirements of the law and to the rights of the tax-payer; and any act on the part of the officer empowered to make such a sale which tends to prevent a fair competition at the auction, ought to render the sale void. Here it did not prevent Jones from bidding and finally bidding successfully, but how far it may have operated to prevent bids from others and have affected the whole sale, can not be known. It is very probable that if the collector made such a request of Jones, whom he saw present, he made a like request of others, and not improbable that, in his endeavor to secure the property for Morse, he may have dissuaded others from attending. It is clear that here was an officer of the law, entrusted with this most responsible and delicate duty, interesting himself in preventing a fair sale that a certain person who wanted to secure the property might get it below its value. Such a thing the law will never tolerate. As, however, it is found that J ones did in fact bid for the property and purchased it at the sale, and as it is not necessary to a decision of the case that we determine what legal effect should be given to these acts of the officer, we express no opinion as to their effect upon the sale, but feel bound to express in the strongest manner our sense of the reprehensible character of the officer’s conduct.

It is claimed however on the part of the defendants that the plaintiffs are estopped from asserting their title by reason of certain declarations of Mr. Osborn, one of the receivers of the bank, and of Alfred Todd, one of the plaintiffs, made to Mr. Jones, who purchased at the tax sale, to the effect in the case of Mr. Osborn, (Mr. Todd not being present,) that the bank had no claim on the premises, and in the case of Alfred Todd, that he then had no title to the property, but that he had had to assume the mortgage note of 15,000 and ought to have one, but could not get it. This was after Jones had bought the property, so that he was not induced to make the purchase by them. It appears however that he afterwards sold the property to Mrs. Todd, one of the defendants, and that she and her husband were induced to make the purchase by the statement to them by Jones of these declarations of Mr. Osborn and Alfred Todd, and that he himself was led to give a warranty of the title by his belief, induced by these declarations, that neither the bank nor Alfred Todd had any title. As he has been vouched in by the defendants upon his warranty and has assumed the defence with them, the question of the operation of the estoppel in his favor comes equally before the court.

There are numerous objections to the claim of estoppel, whether made by the defendants or by J ones, which are entitled to serious consideration, among which is the point made by the counsel for the plaintiffs, that an estoppel in pais can not be set up against a legal title in an action at law, but we pass them over, because we are clear that the declarations were not sufficient in themselves to constitute an estoppel.

The declaration of Mr. Osborn, that the bank had no claim to tlie property, cannot affect the title of Alfred Todd. The bank held a bare legal title, the equitable interest being wholly in Todd. In these circumstances the receivers could not, by mere declaration or conduct, confess away his equitable rights.

And the declaration of Alfred Todd was not that he had no equitable right to the property. On the contrary it was substantially a declaration that he had such a right. He said that he had then no title to the property, which, taken with the rest of the conversation, fairly implied that he hoped to get one. He declared that he had had to pay the $5,000 mortgage, and ought to have a title to the property, but could not get it. Moreover this declaration, lacking as it does all positiveness of statement as to his not having an equitable right, was afterwards qualified by a later conversation, which however occurred before the sale of the property to the defendants. The sale to Clinton was not made till March, 1876, and that to the defendants, (Clinton having deeded the property back to J ones,) not till June, 1877. It is found that on the 27th of January, 1876, Alfred Todd and Jones met by appointment on the premises, and that it was agreed between them that when Todd coüld get his title from the bank, Jones would release his tax title to him for a consideration. It is not important that this consideration was not agreed on; the negotiation showed Jones that Todd claimed an equitable right to the property, and was trying to get a title to it. When at last he -obtained the legal title he had obtained only what J ones well understood that he was trying to get. There was nothing in his declarations that estopped him in the slightest degree from afterwards obtaining this title, or that now estops him from asserting it.

But even if the declarations were of such a character as to constitute an estoppel, it is difficult to see how they can be. taken advantage of in the present case. It is clear that the - defendants, who received them merely at second hand through Jones, and for whom they were not intended, can not set them up as constituting an estoppel in their favor. Kinney v. Whiton, 44 Conn., 262; Mayenberg v. Haynes, 50 N. York, 675; Morgan v. Spangler, 14 Ohio St. R., 102. And although Jones is vouched in as a warrantor of their title and joins in the defence, yet it is difficult to see how he will be injured as such warrantor by a denial of the benefit of the estoppel. If ho had bought the property upon the strength of the declaration of Alfred Todd that he had no title himself, he would be injured by having the title which ho supposed he had obtained set aside in favor of Todd’s title. He might have taken only a quit-claim deed, or if a warranty the warrantor might not be responsible. But hero he parted with nothing. He had already bought the property, at 1ns own risk, and for a nominal price. If he had no title, (as we must assume that he had not if we regard him as standing wholly on the estoppel,) then he sold the defendants land to which ho had no title, making what he received for it so much clear gain. If now the plaintiffs recover in their suit and. evict the defendants, and they resort to him on his warranty, he will be compelled to pay them back what he received, and when he has done so will stand exactly where he stood when the declarations were made which he is now endeavoring to treat as an estoppel. The only difference would be, that he then held land to which he had no title and which he would be compelled to give up, and now he holds its equivalent in money to which he has no better title, and -which he will be compelled to give up. It is true that he may have sold the land to the defendants for less than its fair value, and on his warranty may be compelled to pay them a larger sum, the rule of damages being the value at the time of eviction. If this were the case he would be damaged to the amount of the difference. But if this is the case it was for him to have shown it. A party setting up an estoppel must always show, as an essential part of his case, that he will be subjected to loss if he can not set up the estoppel. There is no presumption in his favor. Here nothing is found with regard to the price paid by the defendants for the property.

And while in the absence of all proof on the subject there would be no room for the inference that it was sold for less than its value, it may fairly be inferred from the fact that Jones believed he had a good title, and from his giving the defendants a warranty deed, that he obtained a reasonable price. And if ho sold for something less than a fair price so as now to be liable on his warranty for a small amount beyond what he received, it would be a strange state of things that he should be allowed to stand upon an estoppel by reason of a loss of perhaps a hundred dollars, and secure to himself property worth four thousand or its money equivalent, and that with no title, and resting upon the estoppel alone; especially does such a result seem strange in view of the fact that an estoppel in pais operates wholly on equitable principles. How the law would deal with precisely such a case we are not called upon to consider, but it is very clear that the matter could be adjusted by some proceeding in equity. An estoppel was never intended to-work a positive gain to a party, but its whole office is to protect him from a loss which but for the estoppel he could not escape.

We are compelled therefore to regard the tax sale as invalid, and the defendants without title. The only remaining question is, in favor of which of the plaintiffs shall judgment be rendered.

The legal title to the disputed premises, prior to the conveyance by the receivers to Alfred Todd, on the 11th of May, 1877, was clearly in the Townsend Savings Bank. This title the receivers conveyed at that time by a quit-claim deed to Alfred Todd. This was before the present suit was brought, and would clearly vest the title in him, unless, as the defendants claim, the fact that Clinton, the grantee of Jones, was then in adverse possession of an undivided seven-eighths of the premises, prevented the operation of the conveyance upon such seven-eighths. If this were so, then the deed to Alfred Todd would have conveyed to him the legal title to one-eighth, while the bank would have held the bare legal title to the other seven-eighths, and the recovery should be by them jointly. But the defendants are wrong in supposing that the ouster of the bank by Clinton could operate to invalidate the conveyance to Alfred Todd. A conveyance made by a trustee to the party holding the equitable title, is not a sale of a pretended title. A release of tlie title by a mortgagee to tlie mortgagor, after the satisfaction of the mortgage, is not within the statute. Gunn v. Scovill, 4 Day, 234. Here the. bank held the legal title under the mortgage, while Alfred Todd, having as surety paid the mortgage debt, had been subrogated to the beneficial interest held by the bank, and was now the equitable owner. A conveyance to him by the bank of the bare legal title in these circumstances, could not be affected by the adverse possession of the defendants. A full title therefore passed to Alfred Todd by the deed of the receivers.

But on the 18th of August, 1877, Alfred Todd, for a valuable consideration, in no way connected with the other transactions in the case, conveyed the premises to Theron A. Todd. This was also before the suit was brought. In the mean time Clinton had re-conveyed the property to Jones, who immediately after, on the 20tli of June, 1877, had conveyed his interest in the premises by a warranty deed to Cornelia M. Todd, the wife of Milo Todd, and the said Milo and Cornelia were holding that interest adversely. Here the conveyance was not saved by any thing in its character or the relation of the parties from tlie operation of the statute, and was therefore void so f the seven-eighths interest held adversely is concerned. re one-eighth not so held passed by the deed, and a ba legal title to the seven-eighths remained in Alfred Todu They were therefore in law tenants in common at the ti. e the suit was brought, and the recovery should be in their joint names.

We therefore advise that judgment be rendered in favor of Alfred and Theron A. Todd for the recovery of the demanded premises.

In this opinion the other judges concurred.