(81 Conn. 539 NEW HAVEN TRUST CO. v. CAMP et al. red, properly said: "Assuming that you find the man on the running board of the car. The car is moving. The van comes up behind and moves faster, and in its movements (Supreme Court of Errors of Connecticut. Jan. 22, 1909.) 1. DEEDS (§ 47*)-ATTESTATION-SUFFICIENCY. Dig. 8 107; Dec. Dig. § 47.*1 it comes so close to this man upon the running board that it injures him. What possible fault is it of that motorman at the front of the car, in the operating of his car that caused that injury? Then, I say that the verdict should be for the railway company." The remarks of the judge upon this subject referred to in the Smedley Compa- 2. ACKNOWLEDGMENT (§ 57*)-PLACE OF DEny's tenth assignment of error were appar- The attestation clause to a deed, acknowlently 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 was discussing this branch of the case. presence, was prima facie evidence that the deed was delivered in New York. It is urged in the fifteenth assignment of error that the court mistook the law in failing to make the proper distinctions in the charge, in respect to the relative duty to the plaintiff on the part of the defendant, the Consolidated Company, who had accepted him as a passenger, and the Smedley Company, who had no special duty to him. From an examination of the record it appears that the trial judge instructed the jury fully and correctly as to the duty of the plaintiff, the driver of the truck, the degree of care which the railway company should exercise toward its passengers, and the manner in which these different duties should be performed. He called the attention of the jury to the application of these principles to the facts claimed to have been established by the evidence in such a manner that it is apparent that the duty which each party owed to the other could not have been misunderstood by the jury. The last reason of appeal questions a decision made by the court below upon a demurrer. The complaint was not demurrable because it was alleged that the plaintiff voluntarily placed himself upon the running board of a trolley car. This cause of demurrer has already been considered in connection with the exception to the charge. Paragraphs 2 and 3 of the demurrer question the sufficiency of the complaint because it is alleged that the car of the railway company was run at a dangerous rate of speed and negligently managed by the motorman. This was essential in an action against two defendants in which it was alleged that the negligence of the servants of these parties jointly caused the plaintiff's injuries. LIVERY EVIDENCE. [Ed. Note.-For other cases, see Acknowledgment, Cent. Dig. § 264; Dec. Dig. & 57;* Evidence, Cent. Dig. § 1572.1 3. DEEDS (§ 91*)-LAW GOVERNING - PRE SUMPTIONS. deed to land in Connecticut had in mind the It will be presumed that the parties to a law of New York as that which would govern, where they resided in New York, and the deed state, but insufficiently under the Connecticut was sufficiently attested under that law of that law. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 229; Dec. Dig. § 91.*] 4. DEEDS (§ 91*)-Laws GOVERNING. Where a deed covering Connecticut land, executed and delivered in New York between parties residing there, does not expressly show determined under the established principles of what should be the governing law, it must be private international law; the question prima facie at least being, not what the parties in fact the intention of sensible persons in their posiintended, but what would necessarily have been tion, if their attention had been directed to contingencies, which escaped their notice. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 229; Dec. Dig. § 91.*] 5. CONTRACTS ( 144*)-LAWS GOVERNING. international law, the proper law of contracts Under the established principles of private executed in one state between parties residing there, respecting subject-matter in another state, So far as the contractual obligations of the parties to which are concerned, is that by which they may justly be presumed to have meant to bind themselves. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 724-727; Dec. Dig. § 144.*] 6. DEEDS (§ 91*)-LAWS GOVERNING. deed of land in Connecticut to execute it in New The effect of the choice by parties to a York, and to establish their domicile there, is a matter of law; and, though it cannot make the conveyance pass title under the law of Connecticut, it could make it establish the relation between the parties respecting the land, out of which, through subsequent events, important There is no ground for the claim that Dig. § 229; Dec. Dig. § 91.*] There is no error. The other Judges concurred. 7. DEEDS (§ 91*)-CONSTRUCTION TIONS. PRESUMP cut land, executed and delivered in New York There being nothing in a deed to Connectibetween the parties residing there, to rebut the presumption that they had in mind the law of New York as governing the deed, and the laws being such that the grantee would take an ab solute fee, it will be presumed that the parties intended that she should have such estate. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 229; Dec. Dig. & 91.*] 8. ADVERSE POSSESSION (§ 106*) - TITLE AC QUIRED. If a decedent held adverse possession of and for 50 years under a deed, she acquired absolute title thereto, which passed to her executors and trustees under her will. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. 88 604-623; Dec. Dig. § 106.*] 9. ADVERSE POSSESSION (8 85*)-EVIDENCEGIFTS. In an action involving the proceeds of land bought by decedent for his daughter as a gift to her, conveyed to her under a defective deed two years after she took possession, and held by her adversely for 50 years, evidence tending to show that the transaction amounted to a present and executed gift was material. [Ed. Note.-For other cases, see Adverse Possession, Dec. Dig. § 85.*] 10. ADVERSE POSSESSION ( 64*) PAROL GIFTS. Possession of land under a parol gift is adverse as against the donor, and if continued for 15 years, establishes a title as against him and all claiming under him. BALDWIN, C. J. In 1855, at the request of Caroline W. Suydam, wife of Ferdinand Suydam of New York, and one of several children of Stephen Whitney of New York, her father, who was then 78 years of age, bought a country place named "Ivy Nook," situated partly in Hamden and partly in New Haven, Conn., for and as a present or gift to her. He paid $11,000 for it, and had the deed, which was dated May 19, 1855, made to himself. Her husband was at this time insolvent, and, to secure the property against him and his creditors, her father did not Convey it to her till 1857, when he and his wife, described as parties of the first part, executed a conveyance of it, in which Mrs. Suydam was described as the party of the second part. This he gave to her, or to an agent, who received it in her behalf. The deed was dated August 4, 1857, and executed in New York. The consideration stated in it was "natural love and affection" and $1. The operative words of grant were "do grant, bargain, sell, alien, remise, release, convey and confirm, unto the said party of the second part, to her sole and separate use during her natural life and free and clear from the debts or control of her present or any future husband," and embraced "all the estate, right, title, interest, dower, right of dower, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, or to" Ivy Nook; habendum "unto the said party of the second part, to her sole and separate use during her natural life and free and clear from the debts or control of her present or any future husband; giving 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 conveyed by decedent to his daughter under a premises in fee simple by deed, will, or void 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 (§ 91*)—ConstruCTION-LAW Gov-receive it until after Mr. Whitney's death. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 358-364; Dec. Dig. § 64.*] 11. ADVERSE POSSESSION (8 85*)-EVIDENCE -DEEDS. While a deed to grantor's daughter was void for insufficient attestation, the fact that it was made is relevant, in an action involving the proceeds of the land, to show that the daughter entered under a claim of title in herself, and not in subordination to that in fact held by her father; the terms of the deed being important as showing the nature of the possession held by the daughter before and after its date. [Ed. Note.-For other cases, see Adverse Possession, Dec. Dig. § 85.*] ERNING. The effect of a deed must be determined by the law of the state or country where the land is situated, but what the parties at the time of its execution understood to be its effect is to be determined by the law they had in mind as governing its construction and operation. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 229; Dec. Dig. § 91.*] Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge. Action of interpleader by the New Haven Trust Company against Theodore C. Camp, executor, and others. From the judgment, Caroline W. Baldwin's executors appeal. Reversed, and new trial granted. Henry Stoddard and George M. Gunn, for appellant. Henry C. White and Leonard M. Daggett, for appellee. There was but a single attesting witness to the deed, namely the magistrate, before whom it was acknowledged in New York city; and the attestation clause stated that it was sealed and delivered in his presence. There were two certificates of acknowledg ment, made in New York two days after the date of the deed. One followed the New York form, and was signed by him as a commissioner of deeds of New York; the other followed the Connecticut form, and was signed by him as a commissioner to take the acknowledgment of deeds appointed by this state. Having but a single wit ness, the deed was, at the date of its delivery, ineffective to convey any interest in land in Connecticut. Comp. St. 1854, tit. 29, c. 1, p. 631, § 8. Farrell Foundry v. Dart, 26 Conn. 376, 381. An act entitled "An act to confirm certain deeds" took effect on June 16, 1858, providing that all deeds of Connecticut real estate, which had been executed in any other state according to its law, with only one attesting witness, but were in all other respects executed according to our laws, should be valid as against the grantor and all persons subsequently acquiring an interest under him with notice. Pub. Acts 1858, p. 46, c. 64. A later statute, passed in 1864, made all deeds of Connecticut lands which had been, or should be, executed and acknowledged in any other state, in conformity with its laws relative to lands therein situated, “valid to all intents and purposes,” with a saving in favor of any title previously "acquired in good faith by any creditor of or purchaser from the grantor in any deed or conveyance, defectively executed, or from his heirs or devisees." Pub. Acts 1864, p. 19, c. 4. On May 19, 1855, Mr. Whitney gave Mrs. Suydam, and she took, exclusive possession and occupation of Ivy Nook as her own, and soon afterwards,. and prior to August 4, 1857, she commenced to make improvements and changes in the house and grounds. This exclusive possession she held till her death in November, 1905, when it passed to the executors and trustees under her will. They sold the place for over $50, 000, and the fund was deposited, by agreement of all parties in interest, with the plaintiff, to be disposed of as a proper court might order. She survived Mr. Suydam for many years, and at her death was the widow of one Nathan A. Baldwin. tion, prima facie at least, is not what they did in fact intend, but what would naturally have been the intention of sensible persons in the position occupied by Mr. and Mrs. Whitney, on the one part, and Mrs. Suydam, on the other, if their attention had been directed to contingencies which escaped their notice. Dicey on the Conflict of Laws, Moore's Ed. 563-566. Only thus can uniformity and certainty of construction be secured. The parties to the deed now in question chose to execute it in New York. They had also chosen to establish their domicile there. The effect of these choices is a matter of law. Minor on the Conflict of Laws, p. 378, note. It could not make the conveyance avail to pass title under the law of Connecticut. It could make it avail to establish a relation between the parties with respect to the land, out of which, by force of subsequent events, important rights in respect to it might arise. See Dicey on the Conflict of Laws, Moore's Ed. 770; Fœlix, Traité du Droit International Privé, 1, § 96. The presumption that the language employed in the deed to Mrs. Suydam was used by the parties in the sense attributed to it alike by the common lex domicilii and the lex loci celebrationis is not rebutted by anything in the record. By the laws of New York, as they existed in August, 1857, the deed to Mrs. Suydam, had it been of land in that state, would have given her an absolute fee. There was therefore a presumption, under the rules of private international law, that, at the date of the conveyance, Mr. Whitney and Mrs. SuyThe 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 ading 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 under the established principles of private international law. By these the proper law of every contract under such circumstances, so far as the contractual obligations of the parties to each other are concerned, is that by which they may justly be presumed to In the judgment file it is stated that the court held that (1) the deed of 1857 conveyed a life estate only, with a power of disposition annexed; (2) this power was never exercised; (3) upon the death of the life tenant the executor and trustee of the residuary estate under her father's will became the ab er facts and circumstances in evidence, con- tinuing in possession after the delivery of varied by parol. It was made, however, to one who had already been in the actual and exclusive possession of the granted premises for more than two years, and whose representatives claimed that this possession was adverse in its character. The finding and the paragraphs marked "proven" in the draft finding filed by the appellants show, as above stated, that Ivy Nook was bought for and as a gift to Mrs. Suydam, and that she was put by her father in immediate and exclusive possession of it as her own. Any evidence tending to prove that the transaction amounted to a present and executed gift was therefore material to the issues on trial. Possession of land taken under a parol gift is adverse as against the donor, and if continued for 15 years establishes a title as against him, and all claiming under him. Clark v. Gilbert, 39 Conn. 94, 97. While the gift, regarded as a conveyance of title, was void, that it was made is relevant to show that the donee entered under a claim of title in herself, and not in subordination to that in fact held by the donor. Comins v. Comins, 21 Conn. 413, 417. The executor and trustee under the will of Stephen Whitney was right in claiming that the terms of the deed of 1857 were of importance as ascertaining the nature of the possession held by the grantee, both before and after its date. But it was not necessarily conclusive. Searles v. De Ladson, 81 Conn. 133, 136, 70 Atl. 589. If her pcssession was taken originally under an absolute gift, and under a claim (however unfounded) of absolute ownership in herself, it was certainly not impossible that her con The effect of an instrument purporting to pass title to real estate must be determined by the law of the state or country in which this real estate is situated. But what the parties to the instrument, at the time of its execution understood to be its effect (whenever that may become important) is to be determined by the law, whatever it was, which they then had in mind as governing its conSee Clarke's Ap peal, 70 Conn. 195, 218, 39 Atl. 155. As already stated, the superior court overlooked one important means of ascertaining from the proofs before it the understanding of the parties to the deed of 1857, and there must therefore be a new trial. The appellants have pursued the remedy given by Gen. St. 1902, § 797, for a correction of the finding, and ask that it may be corrected by adding certain paragraphs from their draft finding. We do not pass upon this request, since the record, as it stands, is sufficient to sustain the appeal, and a new trial must be ordered, upon which parol evidence of the conduct of the parties to the deed of 1857, whether before or after its delivery, shall not be regarded as necessarily explained and controlled by what may be the legal effect of that conveyance under the laws of Connecticut. There is error, and a new trial is ordered. The other Judges concurred. (81 Conn. 592) ENSWORTH et al. v. NATIONAL LIFE ASS'N. (Supreme Court of Errors of Connecticut. Jan. 27, 1909.) 1. COURTS (§ 99*) PREVIOUS DECISION IN SAME CASE-LAW OF CASE. Where, in stockholders' proceedings to dissolve a stock insurance corporation, the court gave notice of hearing to creditors, policy holders, and death claimants, who had an opportunity to intervene and object to dissolution, but failed to do so, a judgment of dissolution was final after the expiration of the time to appeal against all parties as to that question, and cannot be objected to on appeal from an order discharging the receiver. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 340; Dec. Dig. § 99.*] 2. INSURANCE (§ 43*)-STOCK COMPANIES-IN SOLVENCY-ASSESSMENTS. Where the only purpose of paying assessments on policies in a stock insurance company 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. [Ed. Note.-For other cases, see Insurance,ceiver of the funds, estate, and assets of the Dec. Dig. § 43.*] 3. INSURANCE (§ 43*) — STOCK COMPANIES DISSOLUTION-ASSESSMENTS. Premiums and assessments sent to a stock insurance company, after its dissolution, by stockholders ignorant of the fact that it had been dissolved, were properly ordered returned, as having been paid by mistake and without consideration. an order appointing Frederick A. Betts re corporation, with power to demand, receive, sue for, and recover the same, wherever found, in his own name as receiver. Since that date the court, through its receiver, has been winding up the affairs of the corporation as provided by statute until August 24, 1908, when a final order was passed that, [Ed. Note. For other cases, see Insurance, upon the payment of certain expenses of the Cent. Dig. §§ 51-53; Dec. Dig. § 43.*] receivership and a dividend of between 7 and 8 per cent. to all creditors who had proved 4. INSURANCE (§ 43*) - STOCK COMPANIES 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 miums, which it would have received, and thereby 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. 5. INSURANCE (§ 51*) STOCK INSURANCE court, in its judgment dissolving the corporaCOMPANIES DISSOLUTION-CLAIMS-PRESENTATION-TIME. tion and appointing the receiver, found these allegations to be true. The assets upon winding up its affairs proved insufficient to pay the liabilities in full. Since the court could extend the time for presentation of claims against a stock insurance company in dissolution proceedings, an allowance of claims will be presumed, in the absence of a finding to the contrary, to constitute an adjudication that they were seasonably presented. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 51.*] 6. INSURANCE (§ 43*)-STOCK INSURANCE COMPANIES DISSOLUTION-UNEARNED PREMIUMS The It appears from an application for instructions made to the court by the receiver, but does not otherwise appear in the record, that the corporation in its life insurance business issued life insurance policies upon what is known as the "assessment plan." Some policies 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 ural premium plan," requiring quarterly, for unearned premiums on the dissolution of 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 porearned premiums that the cost would exceed the amount thereof. -RETURN. [Ed. Note. For other cases, see Insurance, Dec. Dig. 43.*] Appeal from Superior Court, Hartford County; Howard J. Curtis, Judge. Action by Lester L. Ensworth and others for a judicial dissolution of the National Life Association, a corporation. Orders were passed dissolving the corporation and appointing a receiver to wind up its affairs, after which claims were allowed, and a final order for a division of assets and discharge of the receiver was entered, from which certain creditors appeal. Affirmed. In the tion, oftentimes the greater portion, was fixed and determined from time to time by the corporation according to the amount of the death losses under the provisions of the policy, and the payment thereof became due upon and in accordance with the provisions of the assessments so made at fixed periods, and notices of which were sent out to the policy holders by mail. All of the policies provided for their continuation only in case that the premiums or assessments so made by the corporation should be paid on or before the date specified in such notices. Certain of the policies provided that, in case the 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 |