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3. ADVERSE POSSESSION

OF TAXES.

(107 A.)

90-ASSESSMENT in 1858, erected farm buildings, and lived
upon the place until his death in 1884, and
that the plaintiff, who is 60 years of age,
was born and spent his life there.
the plaintiff received a conveyance from the
other heirs of Samuel Holden.

In an action involving title by adverse possession, the mere fact that taxes are assessed against a person in possession of land is utterly inconsequential, being only an opinion of the

assessors in reference to the title. 4. ADVERSE POSSESSION

TAXES.

88-PAYMENT OF

Payment of taxes upon land is not evidence of possession, but is evidence of a claim of title, and becomes significant if known to and acquiesced in by the owner, and may transmute mere possession into a disseizin.

5. ADVERSE POSSESSION

85(2)—EVIDENCE. In trespass to try title by one claiming by adverse possession, court properly permitted plaintiff to introduce evidence that one of defendant's predecessors in title, in exploring and surveying a plantation of which the land once formed a part and computing its area, deducted from the acreage the land claimed by plaintiff, although such predecessor in title was not then the owner of the land, but was exploring with the view of purchasing and with others did later acquire it, it being permissible to show actual knowledge as well as presumptive knowledge of adverse claim.

6. ADVERSE POSSESSION OF OWNER.

31-KNOWLEDGE

To take title by adverse possession, it is not necessary to bring home to the owner actual knowledge of the possession; it being sufficient to prove acts of possession so open and notorious that the owner's knowledge of them, and of their adverse character, may be presumed.

In 1911

Mr. Buswell, who made the plan used in this case, divided the lot into six parcels, irregular in shape and varying in size from 1 acre to 35 acres; the division being based upon the difference in the kind of land and character of use. The jury found by their answers to questions submitted by the court that the plaintiff had acquired title by possesSion to all these parcels. They also returned a general verdict for the plaintiff for the sum of $211. The case comes to the law court on motion and exceptions.

Motion.

In the argument before the law court, it was conceded that the plaintiff had acquired title to 50 acres of field and pasture land, being parcels 2 and 5 on Buswell's plan. The controversy, therefore, relates only to about 40 acres of woodland. The woodland is only in small part fenced. No color of title under recorded deeds is relied on by the plaintiff. If he has gained title by adverse possession to the land now in dispute, it must be by reason of Revised Statutes, c. 110, § 10, which reads as follows:

"To constitute a disseizin, or such exclusive and adverse possession of lands as to bar or

Motion and Exceptions from Supreme Ju- limit the right of the true owner thereof to re

dicial Court, Somerset County.

Action by Moses Holden against Blin W. Page. Verdict for plaintiff. Transferred on motion and exceptions. Motion and exceptions overruled.

Argued before CORNISH, C. J., SPEAR, HANSON, DUNN, WILSON, DEASY, JJ.

and

and

cover them, such lands need not be surrounded with fences or rendered inaccessible by water; but it is sufficient, if the possession, occupation and improvement are open, notorious and comporting with the ordinary management of a farm; although that part of the same, which composes the woodland belonging to such farm and used therewith as a wood lot, is not so en

closed."

[1] This statute does not dispense with Walton & Walton, of Skowhegan, for any of the elements necessary to make posplaintiff.

sessory title. Tilton v. Hunter, 24 Me. 33. George W. Gower, of Skowhegan, for de- While color of title is not essential and infendant.

DEASY, J. Trespass to try title to land in Dennistown Plantation, county of Somerset. The property involved is an approximately rectangular lot containing, including several acres of water, nearly 100 acres, with a farm¦ house and farm buildings thereon.

The defendant has the record title to the locus, derived under deeds dated 1882 from Abner and Philander Coburn, who are conceded to have been the owners of the property.

The plaintiff claims title by adverse possession. The case shows that the plaintiff's father, Samuel Holden, settled upon the lot

closure by fences not necessary, acts of possession must be shown so open, notorious, and continuous that the owner viewing the land may be presumed to know of the use and of its character and extent. Occasional trespasses will not ripen into title. Adams v. Clapp, 87 Me. 316, 32 Atl. 911; Smith v. Sawyer, 108 Me. 485, 81 Atl. 868.

Were the court passing originally upon the facts, it might find against the plaintiff's contention; but the verdict of the jury is not so clearly wrong as to require reversal. It appears that with negligible exceptions all the wood used on the farm for fuel, fencing, and repairs during nearly half a century was cut on these wood lots. There

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was evidence of wood cutting from time to time on all parcels of land. Mr. Buswell testified that the land appeared like land that had been cut over.

The defendant contends that the use was

interrupted. The defendant's predecessor operated upon the land in 1884. The defendant did some lumbering there in 1910. Between 1858, when Samuel Holden settled upon the property, and 1910, there are two periods of more than 20 years during which such use as the Holdens made of the property was apparently uninterrupted.

[2] The defendant claims that outside the field and pasture the property consisted of wild land and that the statute above quoted does not apply. But "wild land" has been defined as "lands in a wilderness state, and not used in connection with improved estates." Stevens v. Owen, 25 Me. 100.

When land is contiguous to improved and cultivated land and commonly used therewith for fuel, fencing, repairs, or pasturing, it no longer has the character of wild land. Stevens v. Owen, supra; Chase v. Alley, 82 Me. 234, 19 Atl. 397.

Again, the defendant urges that the plaintiff was but an occasional trespasser, or, at all events, that the defendant was justified in so regarding him. In this connection the evidence relating to taxation is significant.

[3] In an action involving title, the mere fact that taxes are assessed against a person in possession of land is utterly inconsequential. At most, it shows the opinion of the assessors in reference to the title, and their opinion is immaterial. Smith v. Booth Brothers, 112 Me. 308, 92 Atl. 103.

[4] Payment of taxes upon land is not evidence of possession. Smith v. Booth Brothers, supra.

But payment of a tax upon land is evidence of a claim of title. Daly v. Children's Home, 113 Me. 528, 95 Atl. 219; Carter v. Clark, 92 Me. 228, 42 Atl. 398. If such payment is known to and acquiesced in by the owner, it becomes more significant.

Turning to the facts of this case, it appears that in every year from 1885 to date the plaintiff has paid taxes in Dennistown Plantation upon 100 acres, or more. The land was not described in the assessment books, but the defendant admits his knowledge that the plaintiff was paying taxes on the 100 acres in dispute. See testimony of defendant as follows:

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[5] The presiding justice permitted the plaintiff to introduce evidence that Omar Clark, one of the defendant's predecessors in title, in exploring and surveying the plantation and computing its area, deducted from the acreage the Samuel Holden farm. Clark was not then owner of the property, but was exploring with the view of purchasing it, and with others he did later acquire it. We think that the evidence was admissible.

[6] To make title by adverse possession, it is not necessary to bring home to the owner actual knowledge of the possession. Green v. Horn, 128 App. Div. 686, 112 N. Y. Supp. 993; Land Co. v. Powers' Heirs, 146 Ky. 801, 144 S. W. 2. It is sufficient to prove acts of possession so open and notorious that the owner's knowledge of them and of their adverse character may be presumed. Morse v. Williams, 62 Me. 446; Roberts v. Richards, 84 Me. 10, 24 Atl. 425; Carter v. Clark, 92 Me. 230, 42 Atl. 398; Hooper v. Leavitt, 109 Me. 77, 82 Atl. 547. But actual knowledge may be shown. Wherever it is competent to prove a fact presumptively, it may be proved directly. Thompson v. Logan, 166 Ala. 45, 51 South. 985; McCaughn v. Young, 85 Miss. 277, 37 South. 839; Lasley v. Kniskern, 152 Mich. 244, 115 N. W. 971.

The evidence excepted to tended to prove that Clark, before his purchase, but while exploring the land in view of acquiring it, had actual knowledge of Holden's possession and of the adverse character of that possession. That knowledge may fairly be presumed to have continued until Clark became one of the owners.

Motion and exceptions overruled.

(93 Conn. 658)

(107 A.)

ROMETSCH v. CONNECTICUT CO.
CHAMBELIS v. SAME.

(Supreme Court of Errors of Connecticut. July 16, 1919.)

COSTS

31 - TAXATION DATED FOR TRIAL.

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The provision of Gen. St. 1918, § 2242, that if more than one issue of fact shall be tried at one time only one trial fee shall be allowed, does not apply where separate actions by different plaintiffs for injuries resulting from the same transaction were by agreement tried at the same time to the same jury which ren

dered separate verdicts in each action, and in such case each plaintiff, having been successful, is entitled to recover a jury fee and a trial fee.

Appeal from Court of Common Pleas, Fairfield County; John R. Booth, Judge.

Separate actions by Felix Rometsch and Tilly Chambelis against the Connecticut Company were consolidated for trial, and in each case there was a verdict and judgment for plaintiff. From the taxation of costs defendant appeals. Affirmed.

Appeal from taxation of costs. The plaintiff Rometsch sued for damages to his automobile, and the plaintiff Chambelis for personal injuries received in the same accident. Both cases were tried to the jury together, so that the evidence as to liability was the same in each case, but the evidence as to damages entirely separate. There was a verdict and judgment for $155 in the Rometsch Case and for $236 in the Chambelis Case. On the taxation of costs each plaintiff was allowed a trial fee and a jury fee.

Seth W. Baldwin, of New Haven, for appellant.

Henry E. Shannon and Frank L. Wilder, both of Bridgeport, for appellees.

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Appeal from Court of Common Pleas, Fairfield County; John J. Walsh, Judge.

Action for foreclosure by George E. Reed and others against Lettie W. Stevens and others, brought to the court of common pleas for Fairfield county, and tried to the court upon the complaint and a counterclaim. Judgment was rendered for the plaintiffs for the amount due upon the mortgage, less the amount found for the defendants upon the counterclaim, from which judgment the plaintiffs appealed. Judgment set aside, and cause remanded, with directions.

Howard W. Taylor, of Danbury, for appellants.

Henry C. Wilson, of Danbury, for appellees.

GAGER, J. On January 25, 1902, one James was the owner of the land described in the mortgage deed sought to be foreclosed, and upon that date a conservator of James was duly appointed, and this appointment continued until the death of James, May 13, 1905. August 15, 1903, James executed a deed of the land described in the mortgage to McNamara, who was made a party to this action. The plaintiffs obtained title to said lands upon the settlement of James' estate, in January, 1906. The plaintiffs, under an agreement with James made before the conservator proceedings, were in possession with James, and continued in possession until November 21, 1914, and on the latter date the plaintiffs sold and conveyed the lands to the defendant Lettie Stevens upon the same day, taking back a mortgage from Lettie Stevens to secure a note of $1,000, represent*ing part of the purchase price. The plainfor the trial of antiffs all the time knew of the deed from issue of law or fact, $15, but if more than James to McNamara, and the defendant Steone issue of fact shall be tried at one time, vens became aware of the James deed prior only one trial fee shall be allowed," does not to accepting her deed, but accepted the deed apply. Here there are two prevailing par- upon the representation of one of the plainties having no privity of action. tiffs that the lands were free of incumbrance. There is no error. In the foreclosure action the defendant Ste

PER CURIAM. Each plaintiff was entitled to a jury fee and a trial fee. There were two jury trials, and the judgment in each case recites accordingly that it was committed to the jury. The agreement that the two cases should be tried together related merely to the method of submitting the question of liability in each case to the jury. Otherwise the two litigations were independent, and on the issue of damages required separate trials. The provision of section 2242, G. S. 1918, which provides that "the prevailing party in any civil action shall receive * *

* *

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vens counterclaimed for damages on account (the land granted from all lawful claims and deof the existence of the deed from James to mands existing at the time of the grant, and McNamara, as a violation of the covenant the contract is made, not only with his immediate grantee, but with whomsoever may become against incumbrances. The counterclaim the owner of the land by a title derived through contained allegations of other incumbrances, the grantee. Booth v. Starr, 1 Conn. 244 [6 but these were either not pressed or removed Am. Dec. 233]; Mitchell v. Warner, 5 Conn. from the case by agreement. The court found 498; Rawle on Covenants for Title (4th Ed.) the deed from James to McNamara, executed 334; 3 Washburn's Real Property (4th Ed.) while James was incompetent, null, and void, 466; 2 Sugden on Vendors (Perkin's Ed.) 240. and that McNamara had no interest in the It is not necessarily an undertaking that there property, either legal or equitable, but held is no incumbrance on the land at the time, but that the deed did violate the covenants it is an undertaking that the purchaser and his against incumbrances in the deed from the assigns shall at all times enjoy the land free from all such incumbrances. Williams v. Wethplaintiffs to the defendant Stevens, allowed erbee, 1 Aikens (Vt.) 233; Rawle on Covenants damages of $300 therefor, deducted this sum (4th Ed.) 215; Whitney v. Dinsmore, 6 Cush. from the indebtedness on the mortgage note, [Mass.] 124; Russ v. Steele, 40 Verm. 310." and rendered a judgment of foreclosure for the balance. From this judgment the plaintiffs appeal. McNamara took no appeal, and the conclusiveness of the finding that the deed of James to him was null and void is not questioned. The deed from the plaintiffs to the defendant was in the usual form of warranty deed, containing the following covenants, viz.:

"To have and to hold the above-bargained premises, with the privileges and appurtenances thereof, unto her, the said grantee, her heirs and assigns forever, to them and their own proper use and behoof. And also, we the said grantors do for ourselves, our heirs, executors and administrators covenant with the said grantee, her heirs and assigns, that at and until the ensealing of these presents we are well seized of the premises, as a good indefeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as is above written; and that the same is free from all in

cumbrances whatsoever.

"And furthermore, we the said grantors do by these presents bind ourselves and our heirs for ever to warrant and defend the above granted and bargained premises to her the said grantee, her heirs and assigns, against all claims and demands whatsoever."

Other facts are found, but in view of the conclusion reached their statement is unnecessary.

The first reason of appeal is stated as follows, viz.: That the court, having sustained the first claim of law made by the plaintiffs, to wit, that the McNamara deed upon the facts found was null and void, erred in overruling the second claim of law made by the plaintiffs, to wit:

"That the McNamara deed did not constitute in law a breach of the covenants in the warranty deed from the plaintiffs to the defendant Stevens."

This reason of appeal is well founded. The existence of a null and void deed does not impair seizin, is no impairment of the right to convey, and constitutes no incumbrance. It is a mere cloud upon the title.

"The covenant of warranty is a contract by which the grantor of land undertakes to protect

The point of this is that an incumbrance violating the covenant of warranty or against incumbrance must be a lawful claim or demand enforceable against the grantee. 15 C. J. p. 1236, it is said:

In

"As now generally recognized by the courts, a covenant against incumbrances is one which has for its object security against those rights subsist in third persons to the diminution in to or interests in the land granted, which may value of the estate, although consistent with the passing of the fee."

Some

See, also, Kelsey v. Remer, 43 Conn. 129, 21 Am. Rep. 638, citing Rawle on Covenants The covenant against infor Title, p. 94. cumbrances differs in its nature as a contract from the covenant of warranty, but the claims as to which both covenants are made are of the same nature. They must be lawful claims impairing the estate granted. point is made in appellant's brief that because the apparent outstanding claim in McNamara was. the entire title, therefore it could not be an incumbrance because inconsistent with the passing of the fee by the conveyance. McNamara's deed, if good, would have constituted a violation of the covenant of good right to bargain and sell, and eviction under it would have constituted a violation of the warranty clause. The distinction does not seem important in this case. A deed null and void ab initio, as is the real meaning of the finding, could furnish no basis of any lawful claim of any sort, whether of a claim of whole title or of a subordinate enforceable interest. The court was therefore in error in holding that this null and void deed constituted a breach of any covenant in the deed, or furnished any basis for damages real or nominal. The determination of this point disposes of the whole case, and renders unnecessary any discussion of the remaining reasons of appeal, except, perhaps, the second, which is that the court also erred in overruling the plaintiff's claim that the McNamara deed, being null and void, did not constitute a cloud upon the plaintiff's title when they deeded to the defendant Stevens. This action of the court, if construed as hold

(107 A.)

ing that the null and void deed was a cloud We therefore hold that the McNamara on the title, would have been inconsistent deed, being null and void, was at the most a with the judgment actually rendered, except cloud upon the title transferred by the plainupon the erroneous theory that a cloud on the tiffs to the defendant Stevens, and as a title and an incumbrance are one and the cloud upon the title it was the basis of no same thing. But the deed in question, being lawful claim by the defendant Stevens invalid, was a cloud on the title, but not an against the plaintiffs, as set out in the incumbrance or in violation of any covenant counterclaim, and therefore in no respect viin the deed. "A cloud upon one's title isolated the covenants in the deed, and that something which shows prima facie some the court erred in allowing damages to the right of a third person to it." Waterbury defendant under the counterclaim. Savings Bank v. Lawler, 46 Conn. 245. In Welles v. Rhodes, 59 Conn. 506, 22 Atl. 286, Justice Torrance, in commenting on this, said:

"Ordinarily such a cloud may be caused by the existence of such documents or such a state of facts as prima facie show, either alone or with the aid of extrinsic facts, some right adverse to the title of the party seeking relief."

The general rule is:

There is error, the judgment is set aside, and the cause remanded, with direction to enter judgment in accordance with this opinion.

The other Judges concurred.

(93 Conn. 597)

DI MAIO v. YOLEN BOTTLING WORKS et al.

16, 1919.)

"Where a deed is apparently valid, and its in-(Supreme Court of Errors of Connecticut. July validity can be shown only by the introduction of extrinsic evidence, it is a cloud on the title justifying the interference of equity." Alden v. Trubee, 44 Conn. 455; 32 Cyc. p. 1317.

1. NEGLIGENCE

85(2)-CONTRIBUTORY NEGLIGENCE-CHILDREN-"ORDINARY CARE.” "Ordinary care," as applied to a young child, means such care as may reasonably be expected of children of similar age, judgment, and experience under the circumstances.

228(2) — INSTRUCTIONS ENCE TO FORMER TRIAL.

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REFER

And this is precisely the import of the facts found as to the McNamara deed. Whatever the court may have intended to hold, if [Ed. Note.-For other definitions, see Words anything, with reference to the question and Phrases, First and Second Series, Ordiwhether this deed was a cloud upon defend-nary Care.] ant's title is immaterial, in view of the con- 2. TRIAL clusion of law as stated by the court upon which the judgment was based, viz. that the McNamara deed was a breach of the covenants against incumbrances, because to be a cloud the claim must be invalid, while only lawful or valid claims violate the covenants as to incumbrances.

In Luther v. Brown, 66 Mo. App. 230, suit was brought to recover the expenses incurred by the plaintiff in an action to remove a cloud from his title. The court, in denying the plaintiff's right to recover, said:

"While it is well settled that any claim which impairs the use of an estate in land or prevents or impairs its transfer is an incumbrance, yet to constitute an incumbrance within the meaning of the covenant against incumbrances such claim must be a valid claim. It is only such claims that are within the purview of any of the implied covenants, unless it be the covenant for further assurance. Hence the fact that, at the date of the conveyance, there was an apparent title outstanding in others, can furnish no cause of action to the plaintiff on the covenant against incumbrances, since all the evidence concedes that such apparent claim or title was not valid, and that the defendant had the title to the land when he conveyed it. * We must conclude, therefore, that the expenses incurred by the plaintiff in the suit to remove the cloud from his title are not recoverable in this action under either of the covenants in defendant's deed."

Instruction, referring to an instruction given by court in a former case to the jurors on the same panel and restating such instruction, held not objectionable.

3. MUNICIPAL CORPORATIONS 706(8)-USE OF STREETS-DEATH OF CHILD-INSTRUCTIONS.

In action for death of a child struck by a wagon in street, instruction on right of deceased child to use of street, and stating, "Ordinarily you do not expect pedestrians to travel certainly, the lengthways of the street, however much they may cross the street," held proper.

4. MUNICIPAL CORPORATIONS 705(3)—USE OF STREETS-NEGLIGENCE OF WAGON DRIVER -CHILDREN IN STREET.

In determining whether death of young child struck by a wagon in street was caused by negligence of driver, the surrounding circumstances, the populous character of the street, the likelihood of children being in the street and of their crossing from one side to the other, and the characteristics of young children in respect to their nonappreciation of danger, should be considered.

5. APPEAL AND ERROR 1066-REVIEWHARMLESS ERROR-INSTRUCTION.

by

In action for death of young child struck wagon in street, court's failure to include

For other cases aee same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 107 A-32

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