2. LANDLORD AND TENANT ~120(2) — SUM-| the claim that the agreement of sale must MARY EVICTION-NOTICE-SUFFICIENCY. have been in writing. The lease did not so In such case, if the lease did not provide provide. This claim is made in a formal that the notice should be signed by the lessor, an unsigned notice in writing sent in an envelope bearing the return card of the lessor was sufficient.

[Ed. Note.-For other cases. see Landlord and Tenant, Cent. Dig. §§ 422, 423, 433.] 3. LANDLORD AND TENANT 120(1) TRACTS CONSTRUCTION.

CON

A lease authorizing the landlord to give notice of termination "if he has opportunity to effect a sale" does not condition his right to give the notice on a presently executed sale, but only upon his good faith belief that he has an opportunity to sell.

way; in reality, it formed no part of the oral argument and is barely referred to in the brief. The overruling of the demurrer was correct and may be passed without dis

cussion.

Upon the trial, Molzon claimed, as the bill of exceptions recites, that the notice given was insufficient, since: (1) It was unsigned; (2) it did not state that the lessor had a present opportunity to sell, but merely an expectation of subsequently entering into a

[Ed. Note.-For other cases, see Landlord and contract of sale; and (3) that the lease reTenant, Cent. Dig. §§ 416-421, 425, 432.]

Error from City Court of Waterbury; John F. McGrath, Judge.

Suit by Patrick H. Carroll against Robert Molzon. On writ of error to review a judgment for plaintiff. No error.

Francis P. Guilfoile, of Waterbury, for plaintiff in error. Edward J. Balthazar and Francis W. Carroll, both of Waterbury, for defendant in error.

ferred to an absolute opportunity to sell and clear the title in the future. The lease does not one conditioned upon lessor's ability to not specify who shall give the notice, but it is fairly to be inferred that only the lessor

was intended.

[2] It specifies that the notice shall be in writing; it does not specify that it shall be signed by the lessor, nor does it give the form of the notice. They might have provided for the form of the notice and that the signature of the lessor should be essential to its validity. In the absence of such provision, it seems unreasonable to hold the parties to a particular form of notice, and alike unreasonable to hold that the unsigned notice is invalid.

WHEELER, J. The bill of exceptions does not state with as much particularity as it should the facts upon which the claims of law desired to be reviewed rest. These, as found in the admissions of the pleadings, in the recitals in the bill of exceptions, and as The purpose of the notice is to apprise the conceded by the parties, are as follows: The lessee of a certain fact, and, as far as the defendant in error, Carroll, on July 5, 1916, conveyance of knowledge of this fact is conexecuted a lease of certain described prem-cerned, it can be done by oral as well as by a ises to the plaintiff in error, Molzon, who signed notice. The signature evidences the entered into and has continued in their pos- authenticity of the notice; it does not add session from thence to the present time. The to its contents. What the signature does is lessor, Carroll, covenanted in the lease that: to point out the source of the notice, to iden"The said Molzon, upon the written notice of tify its origin. This may be done by proof sixty days, shall vacate the premises described that the lessor gave it in person, or the body of the notice may show whence it came and whose it is.

in the existing lease if the said Carroll has an opportunity to effect a sale of the building and premises with its appurtenances.'

On September 8, 1916, one Dauch entered into an oral agreement with Carroll to purchase these premises with their appurtenances upon condition that the premises were transferred freed from Molzon's occupation and tenancy, and on September 9, 1916, Dauch gave Carroll a certified check for $1,000 to bind the bargain. Dauch is ready, willing, and able to complete the purchase, but will not do so until the premises are released from Molzon's lease and possession. On September 9, 1916, Carroll gave by registered mail Molzon notice of 60 days to quit possession of the premises 60 days from the receipt hereof according to this agreement, but the notice was unsigned.

[1] The amended complaint set forth in substance these facts. It was demurred to because the agreement of sale was oral and unenforceable, and the notice given was insufficient because predicated upon an unenforceable agreement. Both reasons rest upon

The unsigned notice received by Molzon, the lessee, told him that it came from his lessor of these premises, and that it was given in pursuance of that agreement as a notice of termination of his tenancy, and that, in case the inadvertent acceptance of rent for September prevented the lessor from ejecting him, then the lessor gave him herewith a notice to quit on September 9, 1916, in accordance with the agreement. In addition, the printed superscription upon the letterhead contained the name, business, and address of the lessor, Carroll. So informing was this notice that Molzon must have known that Carroll sent it to him intending it as the notice called for by their agreement. And when a notice to quit possession does inform the person in possession that it comes from his lessor, and neither the agreement of the parties nor the statute requires it to be signed, its source is definitely determined, and the signature to the notice will not tell the

lessee more, and is not essential to make the Appeal from Superior Court, Fairfield notice valid. Tooele Meat & S. Co. v. Morse, County; William H. Williams, Judge. 43 Utah, 515, 136 Pac. 967; Leite v. Croveiro, 36 R. I. 62, 89 Atl. 20; Lund v. Ozanne, 13 N. M. 293, 84 Pac. 710; In re Farmers' Supply Co. (D. C.) 170 Fed. 502; Finnegan v. Lucy, 157 Mass. 439, 440, 32 N. E. 656.

[3] The remaining claims require a construction of the words of the lease, "if the said Carroll has an opportunity to effect a sale"; for the right to give the written notice to quit is made to depend upon the existence of this opportunity. Whatever may have been the differences upon the trial, the parties now agree that "an opportunity to effect a sale" means a chance existing in good faith to effect a sale. This language is said to be intended to express a present, absolute opportunity to sell.

Suit by Robert A. Fosdick against William B. Roberson and another to foreclose a judgment lien, and for possession of the premises. From a judgment for plaintiff, defendants appeal. Error, judgment set aside, and new trial ordered.

George P. Rowell and Warren F. Cressy, both of Stamford, for appellant William A. Comstock. Warren F. Cressy, of Stamford, for appellant William B. Roberson. Stanley T. Jennings and Robert A. Fosdick, both of Stamford, for appellee.

SHUMWAY, J. This is an action to forewhich the lien is based was rendered on close a judgment lien. The judgment upon If that be the true construction, the lessor, March 20, 1914, in an action brought by the present plaintiff against the defendant Roberalthough apparently desirous of effecting a son. The latter' action was brought in 1915 sale, has inserted a provision which will deter purchasers. The purchaser wants pos- 1915. The cause of action stated in the comreturnable the first Tuesday in November, session as early as possible. If the notice must wait the present, absolute opportunity, Roberson of the transfer to him of seven parplaint was the fraudulent procurement by at least 60 days thereafter must elapse be- cels of land situated in Stamford by Fosdick fore the transfer. And intending purchasers may not be willing to wait. The language it- by his deed dated August 12, 1911. No actual service of the process was made upon Roberself does not invite, much less require, this construction. It would be against the interest son. The action was begun by a constable of of the lessor, and hence unlikely to have been of Stamford a certificate of attachment of Stamford lodging in the town clerk's office intended by him. The construction which seems to us to accord with the language used and the issuance of an order of notice by the the seven parcels of land above mentioned and the probable intent in its use is that the assistant clerk of the superior court in Fairopportunity was not one which should in all field county, directing that notice of the events exist, but merely one in which the les-pendency of the complaint be sent by mail to sor should have a belief in the chance to effect a sale and one founded in and governed by good faith.

There is no error. The other Judges concurred.

(91 Conn. 571)

FOSDICK v. ROBERSON et al.

the defendant at Portland, Or. It appeared, however, that Roberson had notice of the pendency of the action before judgment was rendered.

The consideration for the conveyance to Roberson was the transfer by him to Fosdick of 3,000 shares of the capital stock of the Alpena Motor Car Company, a promissory

(Supreme Court of Errors of Connecticut. June note for $7,000 made by said Roberson and

INTEREST Where C. took title to the realty from R. with full knowledge of the resulting trust in favor of R.'s copurchasers, he took only such title as R. had, and an attachment creditor acquired by his attachment only the rights which R. had in the property.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 453, 550-575.] 2. ATTACHMENT 171

CIENCY.

NOTICE

secured by a mortgage to Fosdick upon the same premises, and the agreement by RoberSon to assume and pay four mortgages upon the premises aggregating $28,000, one to the trustees of the Universalist Church of Stamford for $15,000, one to Nicholas C. Downs for $3,500, one to Ernest L. Conant for $7,500, and one to William H. Arthur for $2,000.

The 3,000 shares of the Alpena Motor Car Company in August, 1911, were owned and held by Roberson and 12 other persons, resiSUFFIdents of Alpena, Mich.; the number held by Under Pub. Acts 1911, c. 135, providing that Roberson and transferred to Fosdick was if there be no person in charge or possession of 1,470 shares, and the remaining number by the property attached the court before which such action is returnable may order such notice the 12 others. These 13 persons agreed verof the action as it may deem reasonable, notice bally among themselves that the interest of of the action given according to an order of each in the premises conveyed to Roberson notice not prescribed by the court issued by the should be in proportion to the stock owned by assistant clerk of the superior court is insufficient, and renders the attachment judgment void. them and transferred as mentioned. On De[Ed. Note. For other cases, see Attachment, cember 18, 1911, the defendant Roberson by Cent. Dig. §§ 492-504.] his deed of that date conveyed the seven

parcels of land to the defendant Comstock, conveyance absolute on its face was in fact with the consent of the 12 others who had a mortgage, because given as security for a contributed stock of the Alpena Motor Car contingent liability and therefore void under Company as part consideration of the con- the law governing the registration of land veyance from Fosdick to Roberson. The con- titles. veyance by Roberson to Comstock was made to secure Comstock for his indorsement of Roberson's note for $11,900 now held by a bank in Alpena. In said deed of December 18, 1911, to Comstock it was stated that as part consideration for the conveyance Comstock assumed and agreed to pay the mortgage upon the premises amounting to $35,000. In October, 1913, Comstock paid the mortgage to Ernest L. Conant amounting with interest to $7,587.50, and he has also paid the sum of $3,965.27 for interest upon the mortgages, taxes, insurance, repairs, and other expenses incident to his holding title to the premises.

The court in this present action rendered judgment on September 10, 1915, for the plaintiff foreclosing the defendant Comstock, unless he paid the plaintiff $33,380.22 before January 2, 1916, and that Comstock deliver up possession of the premises to the plaintiff. From this judgment the defendants appealed, assigning as error in 52 reasons of appeal various rulings upon evidence and the action of the court in holding that the defendant Comstock did not hold title to the premises in trust not alone for the defendant Roberson, but for each and every person who contributed to the purchase price thereof, and in holding that the judgment against the defendant Roberson was of any force and effect against the defendant Comstock or the others who contributed to the purchase price of the premises. Under the allegations of the complaint in this action the plaintiff's right to the relief claimed is predicated upon either a legal or equitable title to the premises in the defendant Roberson, and necessarily there rests upon the plaintiff the burden of proving such title.

In some of the cases, notably the case of French v. Burns, 35 Conn. 359, it would seem that the test to be applied in determining whether a conveyance absolute on its face is or is not a mortgage is this: Was the conveyance in fact made as security for some debt? This court in Waterman v. Buckingham, 79 Conn. 292, 64 Atl. 212, in commenting upon the case of Newtown Savings Bank v. Lawrence, 71 Conn. 358, 41 Atl. 1054, 42 Atl. 225, said:

"The decision in that case was based upon our recording act. In consequence of the plaintiff's negligent failure to record a mortgage deed as a result in the nature of a penalty imposed by statute therefor, we held that the title of a trustee of the insolvent estate of the mortgagor, who held the record title, was superior to that and "we regarded the case as one calling for the of the plaintiff under the unrecorded mortgage," construction of our statute regarding unrecorded deeds, rather than for the enforcement of equitable rights."

It will be found that all the cases in this state up to that time were reviewed in Ives v. Stone, 51 Conn. 446. In the latter case, the defeasance was in writing, but unrecorded, and the court held that the case turned "upon the construction of the registry law." It will be found also that in all the cases in which this court has held a conveyance absolute on its face, to be in fact a mortgage, there has been a defeasance either in writing or by parol agreement manifesting the intention of the parties to create a mortgage, and such conveyances have been held void because the defeasance was not recorded. But there is now before the court no such case. The trial court has found facts from which the legal inference is that Roberson never in equity owned the entire premises, and while the title remained in his name it It appears, however, that the legal title to could not be taken for his debts not created the land in question on September 12, 1913, upon the strength of his apparent ownership. the day the original action was begun, was The trial court has found that the defendant in the defendant Comstock, as shown by the "Roberson and 12 other persons were the deed from Roberson and wife to Comstock, owners of 3,000 shares of the capital stock dated December 18, 1911. This deed is in of a corporation called the Alpena Motor Car every respect sufficient to convey to Com- Company, and while the stock was so ownstock the premises described unconditioned, ed it was orally agreed between Roberson except as mentioned in the deed. The plain- and the other 12 that the premises now tiff, however, has alleged that: (1) The deed | standing in the name of Comstock should be of December 18, 1911, was in fact a mort- purchased, held, and managed in Roberson's gage, and that it was fraudulent and void as to the plaintiff; and (2) that said deed was a conveyance as security for an indebtedness, unmentioned in the deed, which indebtedness was unknown to the plaintiff, and for that reason is void as to the plaintiff. There is nothing in the record to indicate that this conveyance or the transactions between Roberson and Comstock were fraudulent in the sense that there was any moral delinquency on the part of either, and the plaintiff ap

name, but for and on account of himself and the other 12 and to that end, Roberson and the 12 others should contribute and surrender to the company such shares owned and controlled by them respectively, and that thereupon said Roberson should procure to be issued by said company to the plaintiff 3,000 shares of its stock in lieu of said surrendered shares, and that Roberson should deliver to the plaintiff on account of such purchase 3,000 shares to be issued by said company,

QUITTNER et al. v. COMSTOCK et al. (Supreme Court of Errors of Connecticut. June 1, 1917.) MORTGAGES 241-FORECLOSURE SIGNEE QUESTIONING TITLE. The assignee had a right to rely upon mortrequirements may not be disregard-gagor's title to land, the mortgage being clearly

ed with impunity, nor waived or changed by courts." The property in question was at tempted to be attached by the officer by leaving in the office of the town clerk of Stamford his certificate and a copy of the writ and complaint and a copy of an order of notice issued by the assistant clerk of the Appeal from Superior Court, Fairfield superior court of Fairfield county. In the County; William H. Williams, Judge.

Suit by Herman Quittner and another against William A. Comstock and others. Judgment for plaintiff, and defendants appeal. No error.

The suit is to foreclose a mortgage of several tracts of land and possession of the premises.

George P. Rowell and Warren F. Cressy, both of Stamford, for appellant Comstock. Warren F. Cressy, of Stamford, for appellant Roberson. John Keogh, Nehemiah Candee, and John T. Dwyer, all of South Norwalk, for appellees.

SHUMWAY, J. This is an action to fore

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Charles Middleton against the Connecticut Company for negligence to recover damages for injury to the person and property of the plaintiff, brought to the superior court and tried to the jury. Verdict directed for defendant, and appeal by the plaintiff. Error.

Charles T. McClure and George W. Crawford, both of New Haven, for appellant. Har rison T. Sheldon and William B. Gumbart, both of New Haven, for appellee.

ed that the plaintiff was driving his team of PER CURIAM. Upon the trial it appearmules hitched to a cart northerly along Orchard street in New Haven and at its intersection with Chapel street, and when his team had crossed the west bound track of the defendant upon Chapel street and was upon the east-bound track a car approaching from the west collided with the cart and team, injuring plaintiff and damaging his cart and team. The verdict was directed upon the theory that the evidence showed the plaintiff's contributory negligence. The defendant's negligence was not in issue on the argument of the appeal.

close a mortgage. This case was tried with the case of Fosdick et al. v. Roberson et al., 100 Atl. 1059, and by stipulation of the parties all the facts found in that case so far as applicable to this should be considered as part of the record. The only additional fact found is that the plaintiff in this action is the bona fide holder and owner of the mortgage, and he acquired the same for a valuable consideration. The mortgage in question is the one given by Roberson to Fosdick as part of the consideration for the conveyance to Roberson by Fosdick of seven parcels of land, and are the same described in the deed and referred to in the first case. The plaintiff holds the same by assignment. The mortgage was clearly given for the benefit of the purchaser of the land, and the assignee of the mortgage had a right to rely upon Roberson's apparent title, and that title cannot be questioned by Roberson, Comstock, or any of the equitable owners of the land. The trial court gave judgment for the plaintiff, foreclosing the defendants, unless the mortgage note was paid before February 1, 1916, and absolute title to the premises will pass to the plaintiff if the defendants fail to pay the amount due, freed of any trust and foreclosing the equitable interest of the per-practically came to a stop when this man sons for whom Comstock may be regarded as trustee, though they are not made parties to the action.

The plaintiff offered evidence to prove that the rule and practice of the defendant, with which he was familiar, required the defendant to stop its west-bound car at the crosswalk on the east side of Orchard street to receive passengers; that as he approached Chapel street he saw a car of defendant approaching Orchard street and slowing down as if to stop; that no signal was given by the motorman; that he saw a man step from the northerly curb of Chapel street at a point a little east of the easterly crosswalk as if to board the car; that the car

boarded it; that the plaintiff thereupon, seeing the car about to stop and the man about to board the car, drove his team slowly on

There is no error. The other Judges con- and across the tracks; and that the car withcurred.

STREET RAILROADS 117(28) INJURIES TO
TRAVELERS · CONTRIBUTORY NEGLIGENCE
QUESTION FOR JURY.
Where a team driver knew the custom of a
street car company to stop its cars on one side
of the street to take on passengers, and he ob-
served a car slowing down at such corner and
a person preparing to board it, and thereupon
drove upon and across the tracks and was injur-
ed by the car, which did not stop, it was a ques-
tion for the jury whether he was contributorily
negligent.

out completely stopping started up and collided with the plaintiff.

Some of this evidence was contested, and the defendant offered evidence to prove that the plaintiff had driven in front of the moving car without attempting to stop his team.

In such a conflict of testimony and theories it cannot be held to have been unreasonable for the jury to have found in accordance with the testimony offered by the plaintiff. Had the jury so found, the conclusion might fairly have been drawn that these facts furnished a reasonable ground for the plaintiff's belief that he would pass in safety if both he and the motorman acted with reasonable regard to the rights of each other. McCarthy v.

[Ed. Note. For other cases, see Street Rail- Consolidated Ry. Co., 79 Conn. 76, 63 Atl. roads, Cent. Dig. §§ 250, 255.]

725.