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red, properly said: "Assuming that you find

(81 Conn. 539 the man on the running board of the car. NEW HAVEN TRUST CO. V. CAMP et al. The car is moving. The van comes up be (Supreme Court of Errors of Connecticut. Jan. bind and moves faster, and in its movements

22, 1909.) it comes so close to this man upon the running board that it injures him. What pos


A deed, executed and delivered in New sible fault is it of that motorman at the York in 1857, was insufficient to convey any front of the car, in the operating of his car interest in land in Connecticut, where it was atthat caused that injury? Then, I say that tested by only one witness. the verdict should be for the railway com Dig. Š 107; Dec. Dig. $ 47.*)

[Ed. Note. For other cases, see Deeds, Cent. pany.” The remarks of the judge upon this subject referred to in the Smedley Compa- 2. ACKNOWLEDGMENT ($ 57*)—PLACE OF DE

LIVERY-EVIDENCE. ny's tenth assignment of error were appar- The attestation clause to a deed, acknowl. ently occasioned by two or three obscure ques-edged before a magistrate in New York, recittions propounded by a juror, when the judge ing that the deed was sealed and delivered in his

presence, was prima facie evidence that the deed was discussing this branch of the case.

was delivered in New York. It is urged in the fifteenth assignment of (Ed. Note. For other cases, see Acknowledg. error that the court mistook the law in fail- ment, Cent. Dig. $ 261; Dec. Dig. 57;* Evi. ing to make the proper distinctions in the dence, Cent. Dig. $ 1572.] charge, in respect to the relative duty to the 3. DEEDS (8 91*) — LAW GOVERNING – Pbeplaintiff on the part of the defendant, the Consolidated Company, who had accepted deed to land in Connecticut had in mind the

It will be presumed that the parties to a him as a passenger, and the Smedley Com-law of New York as that which would govern, pany, who had no special duty to him. where they resided in New York, and the deed From an examination of the record it ap- state, but insufficiently under the Connecticut

was sufficiently attested under that law of that pears that the trial judge instructed the ju- law. ry fully and correctly as to the duty of the [Ed. Note.-For other cases, see Deeds, Cent. plaintiff, the driver of the truck, the degree Dig. $ 229; Dec. Dig. & 91.* ] of care which the railway company should 4. DEEDS (8 91*)-LAWS GOVERNING. exercise toward its passengers, and the man- Where a deed covering, Connecticut land, ner in which these different duties should executed and delivered in New York between be performed. He called the attention of the what should be the governing law, it must be

parties residing there, does not expressly show jury to the application of these principles determined under the established principles of to the facts claimed to have been established private international law; the question prima by the evidence in such a manner that it is facie at least being, not what the parties in fact

intended, but what would necessarily have been apparent that the duty which each party the intention of sensible persons in their posiowed to the other could not have been mis- tion, if their attention had been directed to conunderstood by the jury.

tingencies, which escaped their notice. The last reason of appeal questions a deci

[Ed. Note.-For other cases, see Deeds, Cent. sion made by the court below upon a demur- Dig. $ 229; Dec. Dig. & 91.*] rer. The complaint was not demurrable be- 5. CONTRACTS (8 144*)-LAWS GOVERNING. cause it was alleged that the plaintiff volun- international law, the proper law of contracts

Under the established principles of private tarily placed himself upon the running board executed in one state between parties residing of a trolley car. This cause of demurrer has there, respecting subject matter in another state, already been considered in connection with ties to which are concerned, is that by which

so far as the contractual obligations of the parthe exception to the charge.

they may justly be presumed to have meant to Paragraphs 2 and 3 of the demurrer ques. bind themselves. tion the sufficiency of the complaint because

[Ed. Note.-For other cases, see Contracts,

Cent. Dig. $$ 724-727; Dec. Dig. 144.*] it is alleged that the car of the railway company was run at a dangerous rate of speed | 6. DEEDS ($ 91*)-Laws GOVERNING. and negligently managed by the motorman. deed of land in Connecticut to execute it in New

The effect of the choice by parties to & This was essential in an action against two York, and to establish their domicile there, is a defendants in which it was alleged that the matter of law; and, though it cannot make the negligence of the servants of these parties conveyance pass title under the law of Con

necticut, it could make it establish the relation jointly caused the plaintiff's injuries.

between the parties respecting the land, out of There is no ground for the claim that which, through subsequent events, important there is no allegation in the complaint show rights respecting it might arise. ing that the servant of the Smedley Compa- Dig. $ 229; Dec. Dig. g 91.*)

[Ed. Note.-For other cases, see Deeds, Cent. ny was not in the exercise of ordinary care. The third and fourteenth reasons of ap


- PRESUMP peal were not pursued in the defendant's

There being nothing in a deed to Connectibrief, and involve no questions which call cut land, executed and delivered in New York for discussion.

between the parties residing there, to rebut the There is no error. The other Judges con presumption that they had in mind the law of

New York as governing the deed, and the laws curred.

being such that the grantee would take an ab


solute fee, it will be presumed that the parties BALDWIN, C. J. In 1855, at the request intended that she should have such estate.

of Caroline W. Suydam, wife of Ferdinand {Ed. Note. For other cases, see Deeds, Cent. Suydam of New York, and one of several Dig. $ 229; Dec. Dig. $ 91.*]

children of Stephen Whitney of New York, 8. ADVERSE POSSESSION ($ 106*) — TITLE AO- her father, who was then 78 years of age, QUIRED.

If a decedent held adverse possession of bought a country place named “Ivy Nook," and for 50 years under a deed, she acquired ab- situated partly in Hamden and partly in New solute title thereto, which passed to her execu- Haven, Conn., for and as a present or gift tors and trustees under her will.

[Ed. Note.-For other cases, see Adverse Pos- to her. He paid $11,000 for it, and had the session, Cent. Dig. 88 604-623; Dec. Dig. 8 deed, which was dated May 19, 1855, made 106.*]

to himself. Her husband was at this time 9. ADVERSE POSSESSION (8 85*)-EVIDENCE— insolvent, and, to secure the property against GIFs.

him and his creditors, her father did not In an action involving the proceeds of land bought by decedent for his daughter as a gift convey it to her till 1857, when he and his to her, conveyed to her under a defective deed wife, described as parties of the first part, two years after she took possession, and held by executed a conveyance of it, in which Mrs. her adversely for 50 years, evidence tending to Suydam was described as the party of the show that the transaction amounted to a pres- second part. This he gave to her, or to an ent and executed gift was material.

[Ed. Note.-For other cases, see Adverse Pos- agent, who received it in ber behalf. The session, Dec. Dig. $ 85.*]

deed was dated August 4, 1857, and executed 10. ADVERSE POSSESSION (8 64*) – PAROL

in New York. The consideration stated in Girts.

it was “natural love and affection" and $1. Possession of land under a parol gift is the operative words of grant were "do adverse as against the donor, and if continued for 15 years, establishes a title as against him grant, bargain, sell, alien, remise, release, and all claiming under him.

convey and confirm, unto the said party of [Ed. Note.-For other cases, see Adverse Pos- the second part, to her sole and separate use session, Cent. Dig. $8 358-364; Dec. Dig. $ 64.*] during her natural life and free and clear 11. ADVERSE POSSESSION (8 85*)— EVIDENCE from the debts or control of her present or -DEEDS.

any future husband," and embraced "all the While a deed to grantor's daughter, was estate, right, title, interest, dower, right of void for insufficient attestation, the fact that it was made is relevant, in an 'action involving dower, property, possession, claim and dethe proceeds of the land, to show that the mand whatsoever, as well in law as in daughter entered under a claim of title in her-equity, of the said parties of the first part, self, and not in subordination to that in fact held by her father; the terms of the deed being of, in, or to” Ivy Nook; habendum "unto important as showing the nature of the posses- | the said party of the second part, to her sion held by the daughter before and after its sole and separate use during her natural life date.

and free and clear from the debts or control (Ed. Note.- For other cases, see Adverse Pos- of her present or any future husband; give session, Dec. Dig. $ 85.*]

ing and granting to the said Caroline full 12. ADVERSE POSSESSION ( 85*)-EVIDENCE.

In an action involving the proceeds of land power to convey or dispose of the said conreyed by decedent to his daughter under a premises in fee simple by deed, will, or roid deed, and held adversely by her, evidence otherwise." This conveyance was recorded that she never saw or read the deed or knew of in the Hamden and New Haven land recits terms, that decedent did not claim the land, and that the daughter continued to occupy it ords in May, 1860, after Mr. Whitney's under a claim of right as owner, was admissible. death, which occurred in the preceding Feb

[Ed. Note. For other cases, see Adverse Pos-ruary. Mr. Suydam applied for a discharge session, Dec. Dig. & 85.*]

in insolvency in December, 1857, but did not 13. DEEDS (8 91*)-CONSTRUCTION-LAW Gov- receive it until after Mr. Whitney's death.

There was but a single attesting witness The effect of a deed must be determined by the law of the state or country where the land to the deed, namely the magistrate, before is situated, but what the parties at the time whom it was acknowledged in New York of its execution understood to be its effect is to city; and the attestation clause stated that be determined by the law they had in mind as it was sealed and delivered in his presence. governing its construction and operation.

[Ed. Note.- For other cases, see Deeds, Cent. There were two certificates of acknowledg. Dig. $ 229; Dec. Dig. 91.*)

ment, made in New York two days after Appeal from Superior Court, New Haven the date of the deed One followed the New

York form, and was signed by him as a County; Milton A. Shumway, Judge. Action of interpleader by the New Haven other followed the Connecticut form, and

commissioner of deeds of New York; the Trust Company against Theodore C. Camp,

was signed by him as a commissioner to executor, and others. From the judgment, take the acknowledgment of deeds appointCaroline W. Baldwin's executors appeal.ed by this state. Having but a single witReversed, and new trial granted.

ness, the deed was, at the date of its deHenry Stoddard and George M. Gunn, for livery, ineffective to convey any interest in appellant. Henry C. White and Leonard land in Connecticut. Comp. St. 1854, tit. 29, M. Daggett, for appellee.

c. 1, p. 631, § 8. Farrell Foundry v. Dart,


26 Conn. 376, 381. An act entitled "An act, tion, prima facie at least, is not what they to confirm certain deeds" took effect on June did in fact intend, but what would naturally 16, 1858, providing that all deeds of Connect- have been the intention of sensible persons icut real estate, which had been executed in in the position occupied by Mr. and Mrs. any other state according to its law, with Whitney, on the one part, and Mrs. Suydam, only one attesting witness, but were in all on the other, if their attention had been diother respects executed according to our rected to contingencies which escaped their laws, should be valid as against the grantor notice. Dicey on the Conflict of Laws, and all persons subsequently acquiring an in- Moore's Ed. 563–566. Only thus can uniterest under him with notice. Pub. Acts formity and certainty of construction be se1858, p. 46, c. 64. A later statute, passed in cured. The parties to the deed now in ques1864, made all deeds of Connecticut lands tion chose to execute it in New York. They which had been, or should be, executed and had also chosen to establish their domicile acknowledged in any other state, in conform there. The effect of these choices is a matity with its laws relative to lands therein ter of law. Minor on the Conflict of Laws, situated, “valid to all intents and purposes," p. 378, note. It could not make the conveywith a saving in favor of any title previously ance avail to pass title under the law of "acquired in good faith by any creditor of or Connecticut. It could make it avail to estabpurchaser from the grantor in any deed or lish a relation between the parties with reconveyance, defectively executed, or from spect to the land, out of which, by force of his heirs or devisees." Pub. Acts 1864, p. subsequent events, important rights in re 19, c. 4. On May 19, 1855, Mr. Whitney gave spect to it might arise. See Dicey on the Mrs. Suydam, and she took, exclusive pos- Conflict of Laws, Moore's Ed. 770; Felis, session and occupation of Ivy Nook as her Traité du Droit International Privé, 1, § 96. own, and soon afterwards, and prior to Au- The presumption that the language employed gust 4, 1857, she commenced to make im- in the deed to Mrs. Suydam was used by the provements and changes in the house and parties in the sense attributed to it alike by grounds. This exclusive possession she held the common lex domicilii and the lex loci till her death in November, 1905, when it celebrationis is not rebutted by anything in passed to the executors and trustees under the record. her will. They sold the place for over $50, By the laws of New York, as they existed 000, and the fund was deposited, by agree in August, 1857, the deed to Mrs. Suydam, ment of all parties in interest, with the plain- had it been of land in that state, would have tiff, to be disposed of as a proper court might given her an absolute fee. There was thereprder. She survived Mr. Suydam for many fore a presumption, under the rules of priyears, and at her death was the widow of vate international law, that, at the date of one Nathan A. Baldwin.

the conveyance, Mr. Whitney and Mrs. Suy. The attestation clause was prima facie dam understood its terms to be such as to proof that the deed of August 4, 1857, was invest her with an absolute estate in fee delivered in New York, and there was no simple. The superior court apparently did 'evidence to the contrary. At that time dower not take this presumption into consideration, could only be claimed under Connecticut law No allusion was made to it in the finding, in lands of which the husband died pos- or to the absence of two attesting witnesses sessed in his own right. In view of the to the deed. The record, however, states execution and delivery, under such circum- that upon the trial the executors of Mrs. stances, of such a conveyance in the state Baldwin's will offered evidence tending to of New York, where a deed with a single prove that her father, in making the purwitness was sufficient to convey lands there- chase of Ivy Nook, intended to make a gift in situated, a presumption arises ut res of it to her, and that she in entering into magis valeat quam pereat; that the parties, possession intended to take it as a gift; but at the time, had in mind the law of New the court ruled that evidence of these facts York as that which would govern the mean- was not admissible to vary the legal effect ing and effect of the instrument in question. of the deed of August 4, 1857. It was one of They could hardly have supposed that they the claims of the executors, who were truswere executing on the one side, and accept- tees of her residuary estate, that she took ad. ing on the other, a conveyance which con- verse possession of the property on May 19, veyed nothing. Pritchard v. Norton, 106 U. 1855, and maintained it till her death. If S. 124, 137, 1 Sup. Ct. 102, 27 L. Ed. 104. she did, she acquired an absolute title, which

Nothing is expressly stated in the instru- passed to them. Whether she did was therement itself as to what should be the govern- fore an important question in the cause. ing law. It must therefore be determined In the judgment file it is stated that the under the established principles of private court held that (1) the deed of 1857 conveyed international law. By these the proper law a life estate only, with a power of disposiof every contract under such circumstances, tion annexed; (2) this power was never exso far as the contractual obligations of the ercised; (3) upon the death of the life tenant parties to each other are concerned, is that the executor and trustee of the residuary by wbich they may justly be presumed to estate under her father's will became the ab er facts and circumstances in evidence, con- | tinuing in possession after the delivery of cerning which there was little or no contro- the deed of 1857, which as a conveyance of versy, do not and should not affect the gen- the legal title was absolutely void, was uneral conclusion.” Among the “facts and cir- derstood by her to be equally adverse in cumstances,” of which there was some evi- character. To show such an understanding dence, and to which this reference was made on her part evidence that she never saw or in the judgment file, are these: That she read that deed, or knew of its terms, that held possession under a claim of right, as her father never included Ivy Nook in the owner; that her father, who was worth at number of his possessions, and that she conthe time of his death about $4,000,000, and tinued to occupy it under a claim of right, had long owned large landed properties, kept as owner was relevant and material. Turner an account of the separate items of his real v. Baldwin, 44 Conn. 121. estate upon his books, but did not enter Ivy The effect of an instrument purporting to Nook as one of them; that she probably pass title to real estate must be determined nerer personally had or saw the deed of 1857; by the law of the state or country in which that it did not appear that she ever knew this real estate is situated. But what the of the particular terms in which it was ex- parties to the instrument, at the time of its pressed; and that after the death of her execution understood to be its effect (whenfather and of Mr. Suydam it was found in

ever that may become important) is to be dethe office of the estate of Mr. Whitney, where termined by the law, whatever it was, which both his papers and those of Mr. Suydam they then had in mind as governing its con

struction and operation. See Clarke's Apwere kept. It is evident from the interlocutory ruling above mentioned, and the terms peal, 70 Conn. 195, 218, 39 Atl. 155. of the judgment file, that the superior court

As already stated, the superior court overregarded evidence of such a nature as imma. from the proofs before it the understanding

looked one important means of ascertaining terial, because, in its opinion, the case must of the parties to the deed of 1837, and there turn on the proper construction of the deed must therefore be a new trial. of 1857, and the effect of that could not be varied by parol. It was made, however, to given by Gen. St. 1902, $ 797, for a correction

The appellants have pursued the remedy one who had already been in the actual and of the finding, and ask that it may be corexclusive possession of the granted premises rected by adding certain paragraphs from for more than two years, and whose repre- their draft finding. We do not pass upon sentatives claimed that this possession was this request, since the record, as it stands, is adverse in its character. The finding and sufficient to sustain the appeal, and a new the paragraphs marked “proven” in the draft trial must be ordered, upon which parol evifinding filed by the appellants show, as above dence of the conduct of the parties to the stated, that Ivy Nook was bought for and as deed of 1857, whether before or after its dea gift to Mrs. Suydam, and that she was livery, shall not be regarded as necessarily put by her father in immediate and exclusive explained and controlled by what may be the possession of it as her own. Any evidence legal effect of that conveyance under the laws tending to prove that the transaction amount of Connecticut. ed to a present and executed gift was there. There is error, and new trial is ordered. fore material to the issues on trial.

The other Judges concurred. Possession of land taken under a parol gift is adverse as against the donor, and if

(81 Conn. 592) continued for 15 years establishes a title as against him, and all claiming under him.


ASS'N. Clark v. Gilbert, 39 Conn. 94, 97. While the gift, regarded as a conveyance of title, was (Supreme Court of Errors of Connecticut. Jan.

27, 1909.) void, that it was made is relevant to show

1. COURTS (8 99*) - PREVIOUS DECISION IN that the donee entered under a claim of title SAME CASE-LAW OF CASE. in herself, and not in subordination to that Where, in stockholders' proceedings to disin fact held by the donor. Comins v. Comins, solve a stock insurance corporation, the court 21 Conn. 413, 417. The executor and trustee gave notice of hearing to creditors, policy hold

ers, and death claimants, who had an opporunder the will of Stephen Whitney was right tunity to intervene and object to dissolution, but in claiming that the terms of the deed of failed to do so, a judgment of dissolution was 1857 were of importance as ascertaining the final after the expiration of the time to appeal

against all parties as to that question, and cannature of the possession held by the grantee, not be objected to on appeal from an order disboth before and after its date. But it was charging the receiver. not necessarily conclusive. Searles v. De Lad- (Ed. Note.-For other cases, see Courts, Cent. son, 81 Conn. 133, 136, 70 Atl. 589. If her Dig. $ 340; Dec. Dig. $ 99.*] possession was taken originally under an ab- 2. INSURANCE (8 43*)-STOCK COMPANIES-IN

SOLVENCY-ASSESSMENTS. solute gift, and under a claim (however un

Where the only purpose of paying assessfounded) of absolute ownership in herself, it ments on policies in a stock insurance company was certainly not impossible that her con-'would have been to continue the policies in force, the receiver of the corporation, after its had upon it, passed an order dissolving the dissolution, was not bound to levy assessments corporation, and upon the same day passed to cover a period subsequent to dissolution which terminated the company's ability to insure.

an order appointing Frederick A. Betts re[Ed. Note.-For other cases, see Insurance, ceiver of the funds, estate, and assets of the Dec. Dig. 8 43.*]

corporation, with power to demand, receive, 3. INSURANCE (8 43*) — STOCK COMPANIES sue for, and recover the same, wherever DISSOLUTION-ASSESSMENTS.

found, in his own name as receiver. Since Premiums and assessments sent to a stock that date the court, through its receiver, bas insurance company, after its dissolution, by stockholders ignorant of the fact that it had been winding up the affairs of the corporabeen dissolved, were properly ordered returned, tion as provided by statute until August 24, as having been paid by mistake and without 1908, when a final order was passed that, consideration.

[Ed. Note.--For other cases, see Insurance, upon the payment of certain expenses of the Cent. Dig. $8 51-53; Dec. Dig. $ 43.*]

receivership and a dividend of between 7 and 4. INSURANCE (8 43*) - STOCK COMPANIES

8 per cent. to all creditors who had proved DISSOLUTION-UNEARNED PREMIUMS.

their claims, the receiver should be dischargWhere, by dissolution of a stock insurance ed from all further liability on account of company, it became unable to earn full pre- the receivership. The complaint upon which by, forfeited its policies, policy holders were en- the superior court acted alleged that the cortitled to the allowance of claims, for the pre- poration was solvent and had sufficient asmiums unearned, in the dissolution proceedings. sets to pay all of its liabilities, and that it

[Ed. Note.-For other cases, see Insurance, was for the interest of all the stockholders Dec. Dig. $ 43.*]

that it should wind up its affairs. The 5. INSURANCE (8 51*) - STOCK INSURANCE

court, in its judgment dissolving the corporaCOMPANIES DISSOLUTION—CLAIMS-PRES. ENTATION-TIME.

tion and appointing the receiver, found these Since the court could extend the time for allegations to be true. The assets upon wind. presentation of claims against a stock insurance ing up its affairs proved insufficient to pay company in dissolution proceedings, an allowance of claims will be presumed, in the absence the liabilities in full. of a finding to the contrary, to constitute an It appears from an application for instrucadjudication that they were seasonably pre- tions made to the court by the receiver, but sented.

does not otherwise appear in the record, that [Ed. Note.-- For other cases, see Insurance, the corporation in its life insurance business Dec. Dig. $ 51.*] 6. INSURANCE (8 43*)—STOCK INSURANCE COM- known as the "assessment plan.” Some poli

issued life insurance policies upon what is PANIES-DISSOLUTION-UNEARNED PREMIUMS -RETURN.

cies were issued upon the single premium In the absence of a finding as to the cost plan, and others upon a plan called the "natof ascertaining and paying policy holders' claims for unearned premiums on the dissolution of the ural premium plan,” requiring quarterly,

In the insurance company, or that such cost would ex-monthly, or bimonthly payments. ceed the amount of the premiums, it was no ob case of all the policies a portion of the prejection to an order directing return of such un-mium was a fixed sum, and the other por. earned premiums that the cost would exceed tion, oftentimes the greater portion, was firthe amount thereof.

[Ed. Note.--For other cases, see Insurance, ed and determined from time to time by the Dec. Dig. $ 43.*]

corporation according to the amount of the Appeal from Superior Court, Hartford death losses under the provisions of the poliCounty; Howard J. Curtis, Judge.

cy, and the payment thereof became due upAction by Lester L. Ensworth and others on and in accordance with the provisions of for a judicial dissolution of the National the assessments so made at fixed periods, Life Association, a corporation. Orders were

and notices of which were sent out to the

policy holders by mail. All of the policies passed dissolving the corporation and ap- provided for their continuation only in case pointing a receiver to wind up its affairs, that the premiums or assessments so made after which claims were allowed, and a final by the corporation should be paid on or beorder for a division of assets and discharge fore the date specified in such notices. Cerof the receiver was entered, from which cer- tain of the policies provided that, in case the tain creditors appeal. Affirmed.

mortuary fund in any class at any time Henry G. Newton, for appellants. Charles should not be sufficient to meet the death E. Gross, for appellee.

losses which should occur in that class of

policy, assessments to meet such losses should THAYER, J. Upon the complaint, dated be made upon the holders of policies of that June 30, 1899, of Lester L. Ensworth and class. The corporation maintained no reothers representing themselves to be stock serve fund, and no mortuary fund set apart holders of the National Life Association, a for the payment of these claims. corporation chartered by the General Assem- On the 30th day of June, 1899, and just bly of the state as an insurance association, previous to the filing of the complaint in the and located in Hartford, the superior court superior court, some one of the officials of on July 7, 1899, after due notice of the time the corporation sent out a large number of of hearing the complaint, and after a hearing 'assessments to its policy holders. After his

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