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so did not affect the rights of the parties, but we are satis-
fied that the amendment was a material one.

The main question then is, whether the attorney upon the
facts found was authorized to make the amendment to the
original submission so as to bind the plaintiffs.

If he had such authority it must have been conferred upon
him by the plaintiffs as a matter of fact, expressly or by im-
plication, or he had it by virtue of his retainer and employ-
ment as an attorney in the case.

The court finds that the plaintiffs did not expressly con-
fer such authority, but the defendant contends that the at-
torney had an implied authority arising out of the special
cii-cumstances of this particular case and his relations to it
and to his clients. If this last claim means that the plaint-
iffs in fact conferred the authority by implication at least,
then the court below should have so found, for this is a con-
clusion of fact, and not being found this court cannot draw
such conclusion. Had the facts warranted such conclusion
it is reasonable to suppose the court would have so found.

If, however, the claim means that the attorney had such
authority by virtue of his employment in the case and* not
otherwise, such claim will be considered in connection with
the next question in the case, which is — did the retainer and
employment of the attorney in the case confer upon him
such authority?

That an attorney at law retained and employed in a cause
pending in a court of common law has authority, without
the consent or knowledge of his client, to submit such cause
to arbitration by rule of court or under the direction of the
court, seems to be established by numerous authorities and



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ITO DECEMBER, 1889.

Daniels o. City of New London.

is not questioned by the plaintififs in the case at bar. And
if the attorney can under such circumstances bind his client
by the submission, we think it would follow that he could
bind him by an amendment made to the submission in good
faith without the knowledge or consent of his client. The
defendant contends that the present case comes within the
above rule, or, if not, he contends that an attorney at law,
having the management of a matter in controvei-sy, whether
pending in court or not, is by law authorized to submit the
same to arbitration without the consent or knowledge of his
client or of the court.

Let us examine the firet of these positions. At the time
the original submission was executed the cause was pending
before a judge of the Superior Coui*t under the statute, and
when the amendment was made the matter was pending be-
fore the arbitrators, and so it seems to be claimed by the
defendant that there was in either case a cause pending in
court within the above rule.

Without determining whether this claim is a valid one or
not, it may for the purposes of the argument be granted and
still it does not help the defendant. There is no pretence
that either the submission or the amendment were made
under the authority or direction of the tribunal before which
the matters to which the submission or the amendment re-
late were pending, within the spirit and intent of the rule
we are considering.

The submission was made in pais; with its execution the
judge had nothing whatever to do ; and by its terms he had
nothing further to do with the submission or the matters
involved therein. This is true also of the amendment, even
though made at the suggestion of the arbitrators, as the
court finds. We think therefore that the case does not come
within either the letter or the spirit of the rule, because, even
if it be conceded that at the time the submission and amend-
ment were made there was a cause pending in court, still
both submission and amendment were made in pais and not
under nor in subjection to the authority of the tribunal in



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DECEMBER, 1889. 171

Daniels v. City of New London.

either case. As to the other position of the defendant, we
are satisfied that the weight of authority is against it.

The cases establishing an attorney's authority to submit
to arbitration a pending cause under the authority and direc-
tion of the court are somewhat numerous, and as is well said
in Marhley v. Amos^ 8 Richardson, 468, this of itself " affords
a fair inference that he cannot submit in any other way."

We have been referred to no well considered case, nor do
we know of any, which supports this claim of the defendant.
On the other hand some of the authorities cited on the
plaintiffs' brief are directly against such a position. See the
cases of Jenkins v. Gillespie^ 10 Smedes & Marsh., (18 Miss.,)
81; Marhley v. Amos^ supra; Scarborough v. Reynolds^ 12
Ala., 252 ; Morse on Arb. & Awards, 16.

In addition to the cases cited there is the case of McQirir
nis V. Ourry^ 18 West Va., 29, decided in 1878, where the
court holds that an attorney has no authority, before or after
suit brought, to make an agreement in pais to submit his
client's cause to arbitration without special authority of his
client. So far as the reasoning and conclusions of the court
in that case on the point in question here are applicable to
the case at bar we adopt them, and feel justified in quoting
from the opinion at some length. The court says : " The
authority of an attorney at common law by a consent order
made in the court to submit a pending suit to arbitration, is
universally admitted. And the court, in cases where such
a consent order has been made at the instance of counsel,
have frequently spoken of the authority of counsel to sub-
mit a controvei-sy of his client to arbitration in general lan-
guage which would be broad enough to include, not only a
case of a submission of a controversy in a pending suit by
an agreement of counsel in pais^ but even in a controversy
about which no suit was pending. But all the cases in which
such loose and general language was used were cases where
the authority of counsel was exercised not only in a pending
suit, but by a consent order agreeing to the submission made
in open court. See Wilson v. Yow^g^ 9 Penn. St., 101;



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172 DECEMBER, 1889.



Daniels v. City of New London.



Holker v. Parker^ 7 Cranch, 449; Somen v. Balabrega, 1
Dall., 164 ; Bingham's Trustees v. Guthrie, 19 Penn. St., 418.
^' Id England, though, so far as I know, it has never been
decided that an attorney had a right to submit his client's
controversy to arbitration when no suit was pending, or by
an agreement inpais^ and not by an order of court when a
suit was pending, yet there are English cases from which it
may be inferred that the courts may there consider the
power of the attorney to submit his client's cause to arbitral
tion as general, and not confined to pending suits or to or-
ders of reference made in courts. See BanfiLl v. Leigh ^
Jeffray, 8 T. R., 571 ; Jamieson v. Binns ^ Dean, 4 Ad. &
E., 946. But in considering how much weight should be
attached to these dicta of English judges, it should be re-
membered that an attorney in England occupies towards
his client a very different relation from what he does in this
country. There he is frequently the general agent of the
client and transacts a great deal of his general business. But
here an attorney is generally employed to attend to his
client's interest in reference to some single controversy. In
Pennsylvania, too, there are decisions which might seem to
imply that the power of an attorney to submit to arbitration
was not confined to the making of a consent order in a pend-
ing cause to refer it to arbitration. See Bingham's Trustees
V. Cruthrie, 19 Penn. St., 419. But in considering what
weight should be attached to the dicta of Pennsylvania
judges, it should also be borne in mind that in Pennsylva-
nia the authority of attorneys is more extensive than else-
where. See Lynch v. The Commonwealth, 16 Serg. & R.,
368; Wilson v. Young, 9 Penn. St., 101. While I have
found no case deciding that an attorney has a general author-
ity to submit his client's controversies to arbitration, there
are cases in which it has been decided that he does not pos-
sess such general authority. See Jenkins v. Gillespie, 10
Sm. & M., 31 ; Scarborough v. Reynolds, 12 Ala., 252. It is
true that these were cases in which there was no lis pendens.
But it seems to me that, as it is held that an attorney by
reason of his being employed to institute a suit or defend a



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DECEMBER, 1889. 178

Daniels v. City of New London.

threatened suit has no authority to submit by an agreement
in pais signed by the attorney the case to arbitration, that
it must follow that he has no such authority though the suit
be pending. An authority to act in pais could only be
inferred, if it existed, from his employment before the insti-
tution of the suit as an attorney, and such employment as
we have seen confers no such authority.

" This conclusion is not at all inconsistent with the nu-
merous cases deciding that an attorney has authority in a
pending suit by an order of court to submit the cause to ar-
bitration. When the courts have assigned any reason for
their decisions they have been based not merely, if at all,
on the employment of the counsel by the client, but on the
fact that he is an oflBcer of the court acting in the presence
and under the control of the court, and as such has a right
to take any legal steps he may deem proper in prosecuting
or defending the suit. But this reasoning has no application
to any action of the attorney in pais^ such as agreeing to
submit the case to arbitrators by an agreement signed by
him without any special authority from his clients."

If an attorney cannot, without special authority from his
client, submit a controversy to arbitration by an act in pais^
we think it follows that he cannot by any like act, without
such authority, materially change a submission already made
or adopted by his client. To hold otherwise would give the
attorney power to do indirectly what he has no power to do
directly.

The case of Jenkins v. Qillespie^ supra^ was a case where
an attorney amended the original submission without au-
thority from his client and the coui-t held he was not bound
by the act of the attorney. The court says : " But admitting
that an attorney has in general power to submit, has he
power to change the terms of the submission made by the
parties ? That would be to change their contract. * * * We
think it would be going too far to say his assent to the
change should bind his client."

In the case at bar, although the court finds that the sub-
mission was di*awn and signed by counsel who believed and



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I 58 ilil



174 DECEMBER, 1889.

Todd V. Oviatt.

were justified in the belief that the Janguage and legal effect
of the submissiou were entrusted to their judgment and dis-
cretion, still the submission was the contract of the parties,
its language was theirs and theirs only, and in legal effect it
had all the incidents of a contract of submission made by
the parties out of court. They had made it theirs by ratify-
ing and adopting what their attorneys had done, and had
been heard under such contract as completed. After such
hearing the plaintiffs had a right to rest in the belief that
the law under the circumstances gave their attomeyB no
binding authority to make a material change in that com-
pleted contract.

Inasmuch therefore as the court below failed to find that
the attorney had any authority from the plaintiffs to make
the amendment, and we are of opinion that the law gave him
none, we are constrained to hold that he had no authority
to make the amendment so as to bind the plaintiffs.

We regret that the facts and the law bring us to such a
conclusion in this case, for the amendment was made and
suggested in the utmost good faith and was well adapted to
promote the best interest of all parties concerned.

There is error in the judgment complained of.

In this opinion the other judges concurred*



58 1741 Edward A. Todd and others v8. Henry N. Oviatt.

I 73 118 |

New Haven Co., June T., 1S89. Andrews, C. J., Cabpbnteb, Pabdeb,
LooMis and BEARDSLEr, Js.

A husband cannot be tenant by the curtesy in lands in which his wife had
only a remainder expectant on a prior estate which did not determine
during the coverture.

[Aiigued June 13th— decided October 80th, 1889.]

Action to recover possession of a dwelling house and lot;



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DECEMBER, 1889. 176

Todd V. Oviatt.

brought to the Superior Court in New Haven County. The
defendant filed the following answer : —

The premises described in said complaint are part of the
estate of Elam Hull, deceased. Said Hull died in 1863,
leaving a will, which was duly probated in the probate dis-
trict of New Haven, and his estate was administered and
settled under its provisions. Said will, among other matters,
contained the following devise "I devise to my daughter,
Louisa Oviatt, wife of Henry N. Oviatt, and to her heirs
forever, the dwelling house where I now live, with the lot
on which it stands and belonging to it, subject, however, to
the use and improvement thereof by my wife, Nancy Hull,
during her natural life." Said Louisa died May 29th, 1864,
leaving two children, the issue of her marriage with the de-
fendant, namely, Ida, wife of the plaintiff Todd, born March
13th, 1868, and Walter, bom November 6th, 1859, both
plaintiffs in this suit. Afterwards said Nancy Hull died,
and on her death the defendant entered into possession of
said premises, claiming title thereto as tenant by the curtesy,
by virtue of his marriage with said Louisa, and is now in
possession as tenant by the curtesy, and claims good right
to continue said occupancy, taking the rents and profits to
himself during his lifetime.

The plaintiff filed the following demurrer to the answer : —

The plaintiff demurs to the defendant's answer, because
it appears therein that said Louisa N. Oviatt, who was, under
the will of said Elam Hull, entitled to the remainder in the
above named premises, died before said Nancy Hull, who
was under said will tenant for life of said premises, and that
therefore said Henry N. Oviatt is not entitled to an estate
by the curtesy in said premises.

The case waj reserved upon the demurrer for the advice
of this court.

W. K. Tatvnsend and G. D. Watrous^ in support of the
demurrer.

1. It must be conceded that by the common law of Eng-
land and by the decisions of every state in which the ques-



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176 DECEMBER, 1889.

Todd V, Oviatt.

tion has arisen, there can be no curtesy in a reversion or
remainder, expectant upon a prior estate for life, unless the
life estate ends during the coverture. We find no decision
whatever to the contrary. 2 Bla. Com., 127 ; Tiedman on
Real Prop., § 107 ; Stoddard v. G-ibbs, 1 Sumn., 263 ; Fergu-
Hon V. Tweedy^ 43 N. York, 643 ; Shores v. Carley^ 8 Allen,
425 ; Webster v. Ellsworth, 147 Mass., 602; Orford v. Benton,
36 N. Hamp., 395 ; Watkins v. Thornton, 11 Ohio St., 367 ;
Hitner v. Ege, 23 Penn. St., 305; Reed v. Reed, 3 Head,
491 ; Stewart v. Barclay, 2 Bush, 650 ; Mackey v. Proctor,
12 B. Monr., 433 ; Redus v. Hayden, 43 Miss., 614 ; Baker
V. Floumey, 58 Ala., 650 ; 4 Am. & Eng. Encyc. of Law, 961.

2. The common law has not been abrogated by statute in
this state. There have been no statute provisions on the sub-
ject until the act of 1877 which abolished estate by curtesy.

3. Nor has it been abrogated by judicial decision. The
defendant bases his claim entirely on the early cases of Bush
V. Bradley, 4 Day, 298, and Kline v. Beebe, G Conn., 494.
Neither of these cases resembles ours in its facts, nor was
there any question raised as to the right to curtesy in a re-
version or remainder. In the latter case no such question
could arise on the facts, and the only reference to curtesy is
on page 499, where the court say that " a husband may be
tenant by the curtesy of lands, although his wife was not
actually seised during the coverture ; " while in the former
case the only point decided, material to this case, was that
a man might be tenant by the curtesy of lands of which his
wife never had actual possession, but only a right to imme-
diate possession ; never actual seisin, but only a constructive
seisin, or, as some authorities say, a potential seisin. Neither
of these positions conflicts with our claim. The text books,
commenting on these cases, so construe them. 1 Shars-
wood's Blackstone, note, p. 488 ; 1 Washb. R. Prop., 5th ed.,
182.

4. So far as the points in the Connecticut cases are con-
cerned, our law is in perfect accord with that of Ohio, Ten-
nessee and Pennsylvania. In each of these a constructive
or potential seisin of the wife is sufficient to give curtesy ;



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DECEMBER, 1889. 177

Todd V. Oviatt

in each has the maxim seisina facit stipitem been abolished ;
and yet each has held that there can be no curtesy in a re-
version or remainder, expectant upon a prior undetermined
freehold. Borland^ % Lessee v. Marshall^ 2 Ohio St., 308;
Watkins v. Thornton^ 11 id., 367; Ouyon v. Anderson^ 8
Humph., 298; Prater v. -Hiwver, 1 Coldw., 644 ; Meedy.Reedj
8 Head, 491 ; Stoolfoos v. Jenkins, 8 Serg. & R., 167 ; Chew
V. Comrs. of Southwark, 6 Rawle, 160 ; Bitchanan v. Duncan,
40 Penn. St., 82. The old rule of descent, seisina facit
stipitem, is now in force nowhere, not even in England. 8
Washb. R. Prop., 6th ed., 14 ; Paterson v. Mills, 19 L. Jour.,
Cha., 310.

6. Reasoning from the analogous institution of dower, the
defendant's position cannot be sustained. Lord Coke speaks
of dower as "highly favored in law," and it is held by a
long line of decisions in England and this country that there
can be no dower in an estate in remainder or reversion. 1
Washb. R. Prop., 164; 4 Kent Com., 39; Moody v. King, 2
Bing., 447 ; Adams v. Beekman, 1 Paige, 631 ; Burando v.
Burando, 23 N. York, 331 ; Brooks v. Hverett, 13 Allen, 467 ;
Medley v. Medley, 27 Gratt., 668 ; 6 Am. & Eng. Encyc. of
Law, 893.

6. There is nothing in the institution of estates by curtesy
that entitles them to favor. Dower has a moral foundation;
not so curtesy. Banks v. Sutton, 2 P. Wms., 700, 708 ; 2
Bla. Com., 127 ; Hosmer, C. J., in ffeath v. White, 6 Conn;,
228. The whole policy of our law is against extending the
husband's rights in the property of the wife.

C. R. Ingersoll and L. E. Munson, contra.

1. Mrs. Oviatt was seised of the land in question during
her life. She took the fee of the property subject to the
life estate of her mother. The estate was a vested remain-
der, alienable, devisable, descendible, with all the incidents
of any other kind of present interest in real property. 1
Swift's Dig., 96. And she was " seised " of this estate ; con-
structively by the common law of England, actually by the
common law of Connecticut. Lord Coke might deny to
Vol. Lvni. — 12



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178 DECEMBER, 1889.

Todd V, Oviatt.

■ — ^

her actual seisin, because, during the life tenancy, she could
not make actual entry upon the land and there receive the
twig and turf — the feudal method of publishing title, for
which, in Connecticut, has been substituted a deliveiy and
record of the deed or probate of the will. 1 Swift's System,
318. But even in Coke's time, and in England, she would
have been properly described as "seised of the reversion,"
because entitled to it; the livery made to the tenant of the
freehold constructively enuring to the benefit of the rever-
sion or remainder. "A man may say of a reversion depen-
dent upon an estate for life that he was seised as of fee." 1
Plowd., 191. See also 1 Washb. R. Prop., 5th ed., side p. 37 ;
3 id., side p. 483; 1 Swift's Dig., 96; Cook v. Hammond^ 4
Mason, 467. But in Connecticut, ownei^ship, vested title,
present right of property, has always meant " seisin," tliis
ownership being publicly shown by the record title. This
was declared to be the common law of Connecticut in a not-
able case. Sillhouse v. Cheater^ 3 Day, 166. And see 1
Swift's System, 313; Bryan v. Bradley ^ 16 Conn., 474. In
some of the states the distinction has been maintained long
after any reason for it has ceased to exist. But in the deci-
sions of those states Mrs. Oviatt would be regarded as seised
in law, though not in deed. Even in Stbddard v. Gibbs^ 1
Sumn., 263, decided in 1832, the leading case to which all
the decisions in this country in support of the plaintiffs'
present contention go back, it is distinctly conceded that she
would by the ancient common law of England be thus seised
of her remainder. And see particularly Vanderheyden v.
Crandall^ 2 Denio, 9. When the feudal system was in full
vigor in England seisin, it is true, meant possession. But pos-
session at that time meant ownership or title. No freehold
estate was then possible without the ceremony of feudal in-
vestiture, the main purpose of which was to publicly evidence
the ownership or title. 2 Bla. Com., 209. But when the
feudal system broke up, and the alienation of land gradually
became freer, new estates in land became possible and new
methods of publicly evidencing the ownership of these new
estates became necessary. Out of this arose the idea of cofir



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DECEMBER, 1889. 179

Todd V, Oviatt.

structive seisin^ which was simply an effort to harmonize the
old and new conditions of society and its laws as far as possible.
Both phrases, *' corporal seisin " and " constructive seisin,"
had the same practical meaning, and that meaning was own-
ership. In the one case the ownership was evidenced by entry
and possession. In the other by acts more in consonance with
the new state of society. But this ownership was complete
without right of entry upon the land. Jenkins v. Fahet/y 73 N.
York, 363. An entry upon land is no more necessary in
these days (even where the English common law has been
adopted) to a "seisin " of the land, than are the other feudal
ceremonies with which actual entry was associated. And
clearly if entry is not so necessary there can be no reason
why a right of entry should be. When it is remembered
that it is not many years since livery of seisin was formally
abolished in England, it is perhaps not strange that courts
in some of our states that had adopted the English common
law should have been slow to recognize the incongruity of
feudal forms with nineteenth century property rights. But
in this case of seisin such recognition has been very surely
going on until "seisin now means ownership." Anderson's
Law Diet., Seisin. Even in Lord Mansfield's time he said,
in Taylor v. Horde^ 1 Burr., 108, that the great changes in
tenures " have left us little but names of feoffment, seisin,
tenure and freeholder, without any precise knowledge of
the thing originally signified by these sounds." But the
plaintiffs ask — Has the common law been abrogated in Con-
necticut by judicial decision? The answer is, that the Eng-
lish common law as a whole has never been in force in
Connecticut propria vigore. Wilfred v. Grants Kirby, 117.
Such parts of it as our judiciary has thought suited to our
circumstances have been recognized by judicial decision and
have thus become part of the common law of Connecticut.
But no part of it which requked corporal seisin as an evi-
dence of ownership has ever been adopted here. On the
contrary, ownership with us has always been seisin. There
never was a time in Connecticut when a person having a
good title to land or to any estate in land, was not well



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180 DECEMBER, 1889.



Todd V. Ovlatt.



"seised" of that land or that estate. 2 Swift's System, 68.
His covenant of seisin could only be broken by a failure in
that respect.

2. Mrs. Oviatt being seised of the property, either actu-
ally or constructively, during her life, and having issue by
her husband, he became a tenant by the curtesy initiate on
such seisin and a tenant by the curtesy consummate on
her death. It may be conceded that in Coke's time a ten-
ancy by the curtesy required the actual seisin of the wife,
as distinguished from constructive seisin, for its initiation.
But there was a good reason for it. Without actual seisin
in the mother the child could not inherit from her. Seisina
faeit Btipitem was the maxim of the common law. And the
husband's tenancy was because of the child's interest in the
land. 2 Bla. Com., 127 ; 1 Greenl. Cruise, tit. 5, ch. 1, § 23 ;



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