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Lewis v. McCabe.

The courts of Massachusetts and Connecticut have always been in harmony on this vexed subject, and the principles hitherto adopted by us, if they do not logically compel, yet very naturally lead to the same result as already reached in that state, where the title of the original vender has been protected notwithstanding the objection we are considering.

If however the contract in question must be construed to mean that the plaintiff authorized McAvoy to sell the property as his own, we should be constrained to hold it so absolutely inconsistent with the retention of the title in the plaintiff as to waive or make void the condition. But in this case the condition that no title was to pass until payment is so clear, express and positive in its terms that we are inclined to give it full effect, and to construe what is afterwards said of the understanding of the parties relative to a sale as the court in Rogers v. Whitehouse, supra, did, that is, not as authority to sell as his own (having nothing himself) but as authority simply to transfer the title of the plaintiff in the manner authorized.

The discussion, so far, implies that we consider that the validity of the contract in question should be determined by the laws of this state; but we ought perhaps to refer particularly to the claim made in behalf of the defendants, that “the negotiations for the sale, although carried on by the plaintiffs' agent in New Britain, required the assent of the plaintiffs in New York to complete the contract,” and that therefore it must be considered as there made.

We think the claim thus stated is based on a partial statement of the facts. But if we supply the omission by reference to the finding, that says “the sales were made at New Britain,” that payment was to be there made to the plaintiffs' agent, and that “all the merchandise was immediately after the respective sales placed in the possession of McAvoy at New Britain," it will become clear that the transaction is to be governed by the laws of this state.

There was error in the judgment complained of and it is reversed.

Stevens v. Battell.

In this opinion the other judges concurred; except CARPENTER, J., who dissented.

49 156 69 435

LOUISE P. STEVENS AND ANOTHER V8. ROBBINS BATTELL

AND OTHERS.

SAME V8. ABEL CAMP AND OTHERS.

While it is a settled principle that one of several tenants in common can

not convey his interest in a portion of the land by metes and bounds without the consent of the others, yet this principle does not apply where a proceeding in rem is instituted to condemn land for a public use. Here the object is not to acquire a tenancy in common but the land itself, and if some tenant in common is not made a party to the proceeding, so that his interest is not taken, it does not prevent the acquisition of the inter

ests of the others. Where land was thus taken by a town for a burying ground, and the agents

of the town, supposing a full title had been acquired, entered upon the premises for the purpose of preparing it for use as a burying ground, but where nothing had actually been done that might not lawfully have been done by a tenant in common, it was held that the remaining tenant in common could not maintain trespass upon the ground of an ouster, nor case upon the ground of a misuse of the premises.

Two ACTIONS OF TRESPASS, with a count in case in one of them; brought to the District Court of the county of Litchfield, and tried to the court before Stoddard, J. The following facts were found by the court:

On the 21st day of August, 1872, one of the plaintiffs, Louise P. Stevens, was, and for some time had been, the owner of one undivided third part of the premises described in the declaration, (which were a part of a farm of land, owned and occupied by the said Louise but separated therefrom by a highway,) as heir of Halsey Stevens and as tenant in common with Jonathan H. Stevens her brother, two thirds being owned by the latter; the other plaintiff, Deziah H. P. Stevens, had a right of dower in the land.

On the 21st day of August, 1872, the town of Norfolk by its selectmen brought their petition against Jonathan H.

Stevens v. Battell.

Stevens to the Superior Court in Litchfield County, praying that the town might be allowed to take the land to enlarge the limits of a burying ground, and such proceedings were had that the court, on the 19th day of December, 1873, decreed that the burying ground be enlarged by adding thereto the tract of land described in the declaration.

During all the time this question was pending in the Superior Court, the town of Norfolk and its selectmen supposed that Jonathan H. Stevens was the sole owner of the land, and supposed that they had obtained an absolute title to the entire tract.

On the 21st day of May, 1874, at a legal meeting of the voters of the town the defendants were appointed a committee in behalf of the town to enter upon the tract and prepare it for a burying ground. On the 23d and 26th days of May, 1874, the defendants, acting in behalf of the town, and for the purpose stated, entered upon the land and removed the division fence between it and the old burying ground, which fence was owned by the town and the plaintiff had no title to any part of it. They also dug up a large number of stones and rocks, removing some before the injunction hereinafter mentioned was served upon them, and leaving some upon the ground.

The ground at this time was grass land, and the injury to the grass by the acts of the defendants for the years 1874 and 1875 amounted to the sum of $75, including the extra expense the plaintiff was put to by reason of these acts in cutting and removing the hay.

On the 9th day of June, 1874, Jonathan H. Stevens obtained a temporary injunction against the town's taking possession of the premises, but on the 10th day of December, 1874, after a hearing the injunction was dissolved.

After the town found that by their proceedings against Jonathan H. Stevens they had not obtained a full title to the land, it brought a petition to the April term, 1876, of the Superior Court at Litchfield, against the plaintiffs, praying for liberty to take so much of the title to the land as was vested in the plaintiffs. The petition was returned to

Stevens v. Battell.

court and such proceedings had thereon that on the 4th day of May, 1877, the court decreed that the burying ground be enlarged by adding thereto the land described in the declaration.

There were assessed and allowed to Jonathan H. Stevens for damages the sum of $950, to Louise P. Stevens the sum of $200, and to Deziah H. P. Stevens the sum of $75; all of which the town has paid.

The defendants entered upon the land honestly and in good faith, acting for the town, and all their acts were done in a proper manner, and were necessary for the purpose of preparing the ground for the uses for which it had been condemned.

The town and defendants did not know until the 26th of May, 1874, or shortly after, that the plaintiffs had or claimed any right or title in the premises.

Upon the trial the plaintiffs claimed that upon the facts proved they could maintain trespass against the defendants; that all the proceedings against Jonathan H. Stevens were inoperative against his co-tenants and gave the town no right to enter upon the land; and that if the town of Norfolk was tenant in common with the plaintiffs on the 23d and 26th days of May, 1874, the acts done were such that the plaintiffs as tenants in common with the town could maintain trespass against them. The court overruled all these claims of the plaintiffs, and rendered judgment for the defendants.

The plaintiffs brought the case before this court by a motion in error.

H. P. Lawrence, for the plaintiffs.

1. The town of Norfolk was not, by decree of the court against J. H. Stevens, made tenant in common with the plaintiffs. The town had title, if any at all, only for the purpose of a burying ground. The plaintiffs had no use for the land for sepulture, and the town had no use for it for purposes of agriculture. If the town appropriated the land for its purposes, such use was inconsistent with the rights

Stevens v. Battell.

of the plaintiffs, and there was no method of accounting whereby the plaintiffs could be indemnified. There was no community of interest possible.

2. The proceedings against J. H. Stevens were inoperative against his co-tenants. Hartford f Salisbury Ore Co. v. Miller, 41 Conn., 112; Stevens v. Town of Norfolk, 46 id., 227.

3. The decree being inoperative against the plaintiffs as co-tenants, the defendants as agents of the town could have no right to enter upon the premises in the name of the town, and are liable as trespassers. They claim no right to enter but in behalf of the town. The plaintiffs were in possession of the premises as co-tenants, and are entitled to recover. Brown v. Wheeler, 17 Conn., 350; Church v. Meeker, 34 id., 422. It is found that damage to the amount of $75 was done, but no one is liable for it; the owners are injured, but denied a remedy.

4. If the town of Norfolk was tenant in common with the plaintiffs on the 230 and 26th of May, 1874, the acts done, (the attempt to take exclusive possession of the premises, and the appropriation of the land for a public burying ground, the removal of the fence and tearing up the ground in process of grading it,) were such acts that the plaintiffs have a remedy against the defendants therefor by action of trespass. The appropriation of the land for a public burying ground was an appropriation to the exclusive use of the one tenant, the others having no right or use remaining, and so, quoad the other tenants, a destruction of the common estate. 1 Washb. R. Prop., 418; Reading's case, 1 Salk., 392; Steadman v. Smith, 8 Ell. & Bl., 1; Murray v. Hall, 7 Com. Bench, 441; Bennett v. Clemence, 6 Allen, 18; Silloway v. Brown, 12 id., 30; Thomas v. Pickering, 13 Maine, 353; Maddox v. Goddard, 15 id., 218; Great Falls Co. v. Worster, 15 N. Hamp., 412; Erwin v. Olmsted, 7 Cow., 229; Dubois v. Beaver, 25 N. York, 123; McGill v. Ash, 7 Penn. St., 397.

5. A tenant in common may maintain trespass against a co-tenant when his co-tenant expels him from the premises

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