Connecticut. Supreme Court of Errors.

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Welton V. Town of Wolcott.

mill-wheel. In that year he bnilt a wall of stone about
twenty-three feet above the old dam and filled the interven-
ing space with earth, the water passing through a culvert ;
and he changed the location of a highway which thereto-
fore had crossed the stream below his dam, so that it there-
after crossed upon this causeway. Concerning this the
court finds as follows : — " There was a sufficient opening
through said causeway thus constructed for the water of
said stream to pass freely and there were no indications of
an intention ever again to use said mill-site and stream of
water for a mill privilege. I find that the then owner of
said premises intended to dedicate said causeway to the
public for a highway, and that th^ public used the same as
a highway firom that time until the year 1876, (when said
use was interrupted by a flood as hereinafter mentioned,)
without interruption or objection. I therefore find that the
same was accepted by the public, and was in the year 1875
and now is a public highway by dedication and acceptance,
there never having been any lay-out." And in a supple-
mental finding the court says as follows : — " Whether the
dedication of the top of the old dam for the purposes of a
highway carried with it a right to the town to repair the
highway, construct a bridge and erect a railing, is a question
of law for the court. I do not find that such a right was
dedicated unless included in the dedication for a highway.
The flume carrying the water to the mill was not disturbed
by the freshet, and the dedication for a highway was not
intended to interfere with the water-privilege and was not
supposed to have that effect."

Not long thereafter Welton turned the water upon a
wheel carrying a grindstone and subsequently a flax-brake.
In or near the year 1837 he built a saw mill there, subse-
quently raising the pond and adding new wheels carrying
cider, grist and saw mills. The plaintiff now owns the site
and applies the water to one or more of these uses. In
187d by die use of flush-boards he raised the water; and, a
heavy rain falling, a large portion of the causeway was
crashed away, and the culvert was somewhat injured but

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JUNE TERM, 1882. »l

Welton V. Town of Wolcoit.

not destroyed. He then proposed to share with the town
the expense of constructing an embankment. Failing an
agreement, the town built a bridge upon abutments about
thirty-eight feet apart over the space formerly occupied by
the causeway, not disturbing the culvert, and the court
finds that ^* after the bridge was completed the agents of the
town constructed a railing on the lower side for the proteo*
tion of the public travel. Such railing was necessary, and
in this the town did not act unreasonably. The effect of
the railing was to make it somewhat more difficult for the
plaintiff to fill in below for a log-way. But that was not
the fault of the town." The plaintiff then built a wall
from one abutment to the other, at the lower side thereof,
80 locating the overflow as to discharge water directly
against one of the abutments, and this finding its way
along the open space under the bridge into his wheel^pit,
injured his belting. The court finds that at small addi*
tional cost he could have so constructed the overflow
and culvert as to carry the water through the embank -
ment outside of the abutment or through the filling,
in either case without injury to himself. It also expressly
finds that the injury to his property was the " result of his
own negligence and folly." The court also says that " it
cannot say that the town acted unreasonably towards the
plaintiff in constructing a bridge, although the preponder-
ance of evidence is that a solid filling of earth and stone
would have been less expensive ; " and that if the plaintiff
and the town had " agreed to work together and re-con-
struct the embankment the highway might have been
restored at less expense to the town and to the advantage
of the plaintiff."

Upon the finding therefore in 1822 the then owner in fee
of the locus in quo made an unqualified appropriation of it
to the use of the public as a highway ; the public accepted
it for such use, acquiring thereby an easement or right of
passage over the soil ; he retaining the fee, together with all
rights of property not inconsistent with the permission given.
By such acceptance the public imposed upon itself the duty

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Tread well p. Brooks.

ci maintiiiniidg the way in a condition of reasonable con-
yeuienoe and safety for travelers. There went therefore
with the irj?6TOoable dedication the equally irrevocable per-
mission to the public to exercise its discretion as to the
mi^nner in which it would perform that duty. If the rains
wa^h^^ the way it came under no obligation to restore it to
ita previous form or condition ; if the floods carried away
t^e embankment, it came under no obligation to re-build ; it
performed its whole duty in providing a safe and convenient
QTOSsing. In doing this it might consult only its own inter-
^BtB or preferences, with a proviso sufficient for the purposes
qf this cape, namely, that it does not purposely do any posi-
tive and unnecessary injury to the reserved rights of the
(^jvtki&j:. l^ely not to have added to the value of those^
Bghts if ^ot a wrong cognizable by a court of law. Inas-
much 36 the oourt finds that '4n the present case the
p^laintiff made tlq claim for damages by reason of trespasses.
if> land, [email protected] the limits of the highway," this view render^
tlie other q;9estion8 raised unimportant.

The Sup^rioiT Court is advised to render judgment for the
4^jrendai»J^ both in tl^e action at law and in the bill in

In thia opinion ilie other judges concurred.

Levi P. Treadwell vs. Petee Brooks.

The statute (Gen. Statutes, p. 355, sec. 22,) provides that "the executor of
administrator of any deceased mortgagee, or any guardian or cooaeryft-
tor whose ward ia a mortgagee, may, on the payment, satisfaction or ^ale
of the mortgage debt, release the legal title to the mortgagor or party
entitled thereto.^' Held not necessary that the release be of the whole
mortgaged property on payment of the whole debt^ but that a part mighl
be released on payment of a part of the debt.

Af owning an equity of redemption of only nominal value in a tract of
land subject to several mortgages, agreed with B to sell him a part of the
tract for a price agreed, the proceeds to be applied in part payment of
the mortgages. The mortgagees consented to release the portion for the

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JUNE TERM, 1882. 268

Tr«Adwell v. Brooka^

pftymenfe proposed, which B waa to mortgajre to a saTings bank to raisa
Ibe money to make the payment The mortgagees thereupon executed
a release to A of the portion in question, and A made a warranty deed
to B, the papers all being deposited with the sayings bank until the
transaction was completed. One of the mortgagees however was an
administrator and another a guardian, and the treasurer of the savings
bank was of opinion that they could not, under the statute, release a
part of the mortc^aged property, and declined to make a loan on the part
onless the whole tract was released. B therefore advised A to get ifait
done, but yl was not able to accomplish it and so informed B, B sooo
a/ter procured elsewhere the money needed to purchase the part and in-
formed A that he had it ready whenever he should make him a perfect
title. Thus matters stood until B put upon record a caveat, claiming an
equitable tiUe to the portion In question and describing the release of %.
paft, as at first proposed, as insufficient Afterwards C purchased the-
equity in the whole tract at a sale of it by A*8 assignee in bankruptcy.
Upon a suit in equity brought by C against B to remove the cloud from
the tHle, It was held thai the title expected by B under the agreemeat
and demanded by the caveat being one which required a release of the
whole tract by the mortgagees, which they were not bound to give and
which they had not authorized A to stipulate for, B had not acquired an
.equitable title to the portion of the land in question.

Bill in equity to remove a cloud from a title ; brougki
U> the Superior Court. Facts found and case reserved for
advice. The case is sufficiently stated in the opinion.

L. P. Brewster and S. B. Scotty for the plaintiff.

ff. B. MwMon and (7. E. Terry ^ for the defendant.

LooMis, J. This is a petition to remove a cIoikI upon the
title of certain land, occasioned by a caveat signed by the
defendant and recorded in the land records of the town, in
which the defendant claimed to be the equitable owner, by
reason of an agreement for the sale of the land to him by
one Isaac W. Ives, owner of the equity of redemption. The
land was subject to three mortgages — one to Joseph M. Ives,
guardian, for nine hundred and thirty-five dollars, one to
him individually for eight hundred and sixty-five doUara,
and one to the plaintiff as administrator of Lyman Keeler
for three thousand and five hundred dollars. The equity of
redemption had no value, and the owner, Isaac W. Ives, was

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Treadwell o. Brooks.

a bankrupt; but he obtained from the mortgagees a quit-
claim releasing a part of the land from the mortgage so that
he might sell it and pay over the proceeds to them. Ives,
with this quitclaim deed, met the defendant on the 14th of
March, 1878, and made the agreement for the sale of the
land in his own name to the defendant. To enable the
latter to raise the purchase money, it was understood that
he was to obtain a loan from the Waterbury Savings Bank
and secure it by a mortgage of the land. Subsequently, on
the 4th of April, 1878, Ives and Brooks met at the savings
bank to consummate the bargain. The treasurer of the
bank drew a warranty deed from Ives to Brooks and a
mortgage from the latter to the bank, which were duly
executed and acknowledged. But the bank officers would
not make the loan to Brooks without first seeing the quit-
claim deed, which had been left with Mr. Terry, attorney
for the defendant, and cotild not then be produced. So that
the parties separated, leaving all the deeds in the hands of
the treasurer of the bank until he could examine the quit-
claim deed. If that should be satisfactory he was to furnish
the money immediately and have all the deeds recorded*
Afterwards during the same day the treasurer obtained the
quitclaim, but objected to it on the ground that an adminis-
trator and guardian had no power to release any portion of
the land mortgaged unless the entire debt secured by the
mortgage was paid, and the next day he wrote Ives to that
effect, recommending him to obtain another quitclaim of
the entire mortgage. After receiving this letter Ives com-
municated its contents to the defendant, and informed him
that the mortgagees had refused to release their entire secu-
rity for the proceeds of the sale of a single lot, and therefore
it would be impossible for him to comply with this new
requirement. The defendant replied by letter of April 9th,
in which, among other things, he said : — " I understand Mr,
Kingsbury has sent you a good and lawful paper since you
was here, and the best thing you can do will be to get it
signed and return it without delay." This referred to the
new quitclaim deed required by Mr. Kingsbury. And on

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JUNE TERM, 1882. 266

Treadwell v. Brooks.

the 16th of April, the attorney of the defendant, at his
request, wrote that the defendant had raised the money and
it was on deposit with Mr. Kingsbury, to be paid to Ives
when he should furnish a perfect title, obviously meaning
such a title as the treasurer of the bank required. The
plaintiff in bringing the present suit, stands not on his title
as a mortgagee, which he held as administrator, but upon
a title acquired by hinj individually by purchase of the
equity of redemption from the assignee in bankruptcy of

From this condensed statehient of the facts it seems
clear that the defendant has no equitable title as against
the plaintiff. Had he accepted the title offered he could
have successfully resisted all the plaintiff's claims and
enforced his own, but as the caveat states and the finding
otherwise shows, he refused the offer and demanded just
what the treasurer of the savings bank required, namely, a
release from the plaintiff and the other mortgagees of their
entire mortgage, covering other land than that which he
purchased. So far as the plaintiff was concerned he had no
right to insist on such a release.

It would have been most unreasonable and unjust to the
mortgagees to require them to part with the entire security
which they held for the avails of a part, amounting only to
a part of the mortgage debt; and neither they nor the
plaintiff ever made or authorized Isaac W. Ives to make any
agreement of sale involving such consequences.

The quitclaim which the plaintiff and the other mortga-
gee consented to give had been executed and was exhibited to
the defendant when the agreement for the purchase and
sale was made, and this was the only basis of Ives's authority
and fixed its utmost limits. The unfortunate feature of
the contract was not owing to the desire or fault of either
party, but wholly to a new and insurmountable obstacle
unexpectedly thrust between them by the requirement of
the bank treasurer. Brooks could not raise the money
without meeting this requirement, and Ives could not pro*
cure the release of the entire mortgage with the avails of
that part of the mortgage property sold.

Digitized by



Tremlw^U v. Brooka.

It may be ftu^ested that as the plaintiff and the other
mortgagees authorized Ives to sell the la^d m question and
q«utolaiined the mortgage as to the portion, to be sold, they
sbould be held as authorizing the giving of a good title, or
itt other words must be held as promising a valid quitclaim,
and if they ware mistaken, as to their power to release a
part of the land upon part payment only of the mortgage
debt, they ought to suffer the conae(]^uences of their mistake,
rather than the defendautt. whp made the contract for the
purchase of the land relying upon a perfect title. Thi^
hiings us directly to the question whether the quitclaim
deed, which the savings ba,nk rejeeted, would have been
efieetual to release the incumbrance of the mortgages on the
lukd bargained to be sold to the defendant. The answer
depends upoA the construction of sec. 22, p. 855, of the
Qeiabcral Statutes^ Revision of 1875, which ia as follows :—
^^The executor or administrator of any deceased mortgagee^
or any guardian or conservator whose ward is a mortgagee^
may, on the payment, satisfaction or sale of the mortgage
debt, release the legal title to the mortgagor or party entitled

We a]?e not aware that this statute has ever been before
any of our oourte for construction,, and it ia to be regretted
tkat; the oouneel on both «ides avoided all discussion of thia

Tbe conclusion oS the baiik taceaauj^er was occasioned by
a strict construction of the language; this was the more
pjpudent course for a bank officer in case of doubt. At first
hlusb it seems plausible to hold that payment of a debt
meana full payment, and relea^ of the legal title means a
fuU^ rather than a partial ijelease, yet we are inclined to
jBftvor a more liberal conetr uction. It may be regarded aa
payment of the debt so far as it equitably rests on the parcel
aold, and aa to that it is a full release of the legal title. It
willoiften happen that more mciney can be obtained to apply
on the mortgage by sellieg and releasing the land in parcel
tO' different persons than could result from a sale of the
Entire tract, and tl^ best interests of the wards will often

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JUNE TERM, 1882. 26T

Phipps n. MunsoiL

require such a coiu:se. Wq think the statute giy^a w
ftclnoiniatrator or guardian all the power i^cessary for
making such a partial release.

Our conclusion therefore is, that the caveat recorded by
the defendant is such a cloud on the plaintiff's titi^ as
equity will remove. It is found to work a present injury
to the plaintiff by preventing the sale of the property, a;id
on the other hand it is of no possible benefit to the defen-
dant, for as we have seen he baa no title legal or equitable
which he can now enforce. It is against conscience for him
tp retain his caveat, for it can serve no possible purpose
other than a sinister one. 1 Story Eq. Jur., (12th ed.,) secu
700 ; ffolland v. Mat/ovy 11 Md.,. 186 ; Chipmc^ y. Citj^ <^
Hartford, 21 Conn.,, 488.

We advise the Superior Court to render judgment for the
plaintiff and to deny the prayer of the cross-biU.

In this opinion the other judges eonouired.

John Phipps v%. HAnma $. MuKaoJv; Ain> akothbr*

Wl^Ue a salt for the focedosure^ of a viortgaga waA pending the partitti^
made a settlement under which the mortgagor was to pay the costs of
the suit and the interest due within thirty days and at once to gire
the mortgagee a quitekiim deed of the mortgaged fM^OAlses; the rnort*
gagee to withdraw the suit and lease the- premises ta the mortgiigoir for a
sum equal to the interest of the deht and ta re-convey to him at any,
time within six months on his payment of the debt; which quitclaim
deed and release were glreo according to the agreement. A tender of
the amount of the debt was made after the expiration of the six moBtba^
Held — 1. That a specific performance could not be decreed, because
the money was not tendered within the six months. — 2, That the transr
action dW not constitute in equity a new mortgage, it l)eing clear upon
the facts that thfi parties intended only a right on the part of the debtor
to a re-conveyance upon a payment of the del>t within the sLx moiiths.

Suit for a specific performance of a contract to convey
lands, and for a redemption of mortgaged property j brought

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Phippe V. Mnnson.

to the Superior Court, and reserved upon facts found fi»
the advice of this court. The case is sufficiently stated in
the opinion.

W. B. Wooster and K B. Gager^ for the plaintiff.

J. W. Ailing and W. H. WilliamSy for the defendants.

Cabpentbb, J. The plaintiff alleges in his complaint
that he was the mortgagor and that the defendant was the
mortgagee of the premises described ; that in March, 1881,
a portion of the mortgage debt being due and unpaid, the
defendant brought a suit for a foreclosure ; that the parties
came together and agreed upon a settlement, as follows : —
The plaintiff was to pay the costs of the foreclosure suit
and the interest due within thirty days, and was to execute
and deliver to the defendant a quitclaim deed releasing all
his interest in and to the mortgaged premises to him ; the
defendant was to withdraw the suit, lease the premises to
the plaintiff for a sum equal to the interest of the debt, and
was to re-convey the premises to him at any time within six
months from the 18th day of March, provided the plaintiff
should pay to the defendant the debt, $1700, with interest.
He then alleges a performance by himself and a tender of
the debt and interest on the 12th day of September, 1881, and
a demand for a re-conveyance of the premises, and a refusal
by the defendant to accept the money and re-convey.

The plaintiff claims a judgment that he may be permitted
to redeem the premises, and that the defendants may be
compelled to re-convey the same upon the payment of the

The allegations in the complaint are found true, except
that the time limited was six months from the 9th, instead
of the 18th of March, and consequently that the tender was
not within the six months. It is also found that Munson
sold the premises to Dunham, the other defendant, on the
10th of September, 1881.

It must be conceded that the complaint contemplates a

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JUNE TERM, 1882, 260

Phipps V. Mnnson.

specific performance and seems to be framed with reference
to that mode of relief,

A specific performance cannot be decreed because the
plaintiff failed to pay the money within the time, and time
is material. It is of the essence of the contract. The
plaintiff claims however that his prayer to be permitted to
redeem should be granted, on the ground that the transac-
tion between the parties is to be regarded in equity as a new
mortgage. In support of this claim he relies upon the
familiar principle, that an absolute deed with an agreement
to re-oonvey on the payment of a sunk of money, will be
treated as a mortgage. The principle itself is not contro-
verted, but its application to this case is denied.

This, as all other contracts, must be interpreted as under-
Btood and intended by the parties. The intention of the
parties when discovered must be the law of the case.

Did the parties intend to continue in another form the
relation of mortgagor and mortgagee ? Such an intention is
not found in terms, and we think the finding is not equiva-
lent to it. The agreement postponed the payment of $1,000
for six months, and provided that the note for $700 should
be paid six months before it was due. In respect to time
therefore Munson gained nothing but rather lost, while in
other respects the risk seems to have been all on his side.
At the end of six months, if the debt was not paid, he must
again sue for a foreclosure or wait for the plaintiff to bring
a suit to redeem. In either case it was practically giving
the plaintiff much more time than he contracted for. That
is very nearly a contradiction of the plain terms of the
agreement. This is a good test. Suppose the plaintiff had
proposed to give a mortgage in form to secure a note pay-
able in six months. Can we presume that Munson would
have accepted it? If not we certainly cannot presume that
he intended by this agreement a mortgage simply.

The whole tenor and scope of the argument precludes the
theory that another mortgage was intended. The object of
the suit brought by Munson was to put an end to that
relation. The object of the settlement, so far as the object

Digitized by VjOOQIC


HUls V. HaUiwen.

can be gathered from its terms and the attending circufli-
stances, was to effect a foreclosure by the action of thfe
parties instead of the court. Hie very purpose of the deed
was to destroy and not to create an equity of redemption;
and of the agreement to re-convey, to give to the plaintiff
in lieu of an equity of redemption, a right to purchase iof
a given price within a limited time. A decree of fore-
closure at the expiration of the time limited, if the debt
was not paid, would have foreclosed the equity of redemp-
tion. The expiration of the time agreed upon by the parties,
the money not bfting paid, put an end to the right U>
re-purchase. The result is the same accomplished by eith^t

The parties resorted to an agreement doubtless tot the
purpose of saving expense. In it we see nothing oppres-
sive, and nothing that contravenes any principle of law tut

The intention of the parties seems to be plain on the fac6
of the transaction ; and as we entertain no doubt in respect
to it we have no occasion to resort to artificial or technical
rules of consti-uction for the purpose of construing thfe
agreement. Nor have we any occasion to consider 8om6
questions raised by the counsel for the defence. For th6
reasons already given we advise judgment for the defendatitfer.

In this opinion the other judges concurred.

Rakbom Hills ««» Samubl Haixiwbll and otheecu

Where a claim secured by a builders' lien has become barred by the statute
* of limitations, the lien can not be enforced against the property.

Surr to foreclose a builders' lien ; biroiight to the Supieriot
Court, and heard before Bedrddey^ J. Facts found, atiA
judgment rendered fol* the defendants, ahd riiotion in €t!ttit
by the plaintiff. The case is fully stated in the opinion.

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JUNE TERM, 1882. 2*71

Hills V. Hailiwell.
W. 0. Case, for the plaintiff.

«r. W. Ailing, fot the defendants.

Pardee, J. In January, 1873, the plaintiff began, and
in January, 1875, ceased to furnish materials for and per-
form labor upon a house for the defendant Hailiwell ; and
in February, 1875, recorded a lien for the value thereof in
the records of the town in which the house stood. No part

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