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by her executing the instrument. Afterwarda justice of the peace went to her bouse,
with an attesting witness, and presented the mortgage to her ; and she took and examined
it, admitted her signature thereto, and said that she knew all about the mortgage, and it
was all right; and the justice thereupon took it and retired with the attesting witness, and
ho after^-ard delivered the instrument duly attested and with the usual certificate of ac-
knowledgment written thereon to D., who delivered it to the mortgagees. Soon after the
justice and witness left the presence of Mrs. D., they were induced by other persons to re-
turn to the house, and she then, in their presence, again acknowledged her signature, but
said that she was '* fort^ed to sign ; " but it did not appear that the mortgage was then pro-
duced, or that Mrs. D. recalled any previous statement made by her to the justice.
Neither of the mortgagees knew, until the action to foreclose was commenced, nearly two
years later, that Mrs. D. bad hesitated about executing it. It did not appear that either
of them ever threatened D. with a criminal prosecution, or that D. represented to his wife
that such a prosecution was threatened by any person. Hrldy that the mortgage was valid.
Cases referred to and distinguished, Ecuiic v. SUmmoji, 26 N. Y. 9 ; Watkim v. Brant, 41
Wis. 419; Bogie ▼. Bogie, 37 id. 87a



Seeley V, Town op Westport.

(47 Conn. 294.)

Taxation — injunction to restrain collection of ia»,

u Injunction will issue to restrain the collection of a real tax, when the pro|^
erty proceeded against is not that on which the tax is laid, and the party
whose property is proceeded against is not the one who owes the tax.



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OCTOBER TERM, 1879. 71

Seelej v. Town of Westport.

APPUCATION to enjoin collection of a tax. The opinion states
the case. The injunction was granted below.

R. E. DeForesty for plainti£Es in error.

W. K. Seeley, and B. W. JSeymour, for defendants in error.

Carpenter, J. This is a petition to restrain the town of West-
port, its officers and agents, from collecting certain taxes by a levy
fnd sale of certain real estate, called Compo Place, now belonging
to the petitioners. During the years 1874-5-6 the real estate was
in the possession of one Mrs. Alden, who claimed title to it and put
!t m her list of taxable property for those years. The taxes now
claimed were assessed upon this and other real estate owned by Mrs.
Alden m such a manner that the amount assessed upon Compo
Place cannot now be ascertained. It was subsequently judicially
determined that the title to Compo Place was not in Mrs. Alden
but in Mrs. Trubee, from whom the petitioners derivea t^eir title.
During the years mentioned, and during the time lor the collection
of the taxes levied in those years, Mrs. Alden was 2)ossessed of suf-
ficient other property in the town from which the taxes might have
been collected. The collectors failed to collect them, and now the
town insists upon its right to collect all the taxes, including those
assessed on other property, from Compo Place, and the collector has
levied his tax warrants thereon for that purpose. These taxes were
assessed against Mrs. Alden and no taxes for those years were as-
i?essed against Mrs. Trubee. This is the substance of the petition,
at least sufficient perhaps for a fair understanding of the questions
involved. The respondents demurred. The Superior Court over-
ruled the demurrer and granted the prayer of the petition. The
case comes before this court on a motion in error.

The question is, whether under the circumstances a court of
equity will interfere to restrain the collection of tlie taxes of the
petitioners.

On three occasions within the last few years this court has re-
fused an injunction to restrain the collection of taxes. Arnold v.
Middletown, 39 Conn. 401 ; Rowland v. First School District
of Weston, 42 id. 30 ; Waterbicry Savings Bank v. Lawler, 46 id. 243.

The last named case goes further and is perhaps stronger against
the petitioners than either of the other two. Prom it the respond-
ents Tirtoally claim that a court of chancery will in no case inter-



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72 CONNECTICUT,



Seeley v. Town of Westport.



fere to restrain the collection of an illegal tax or the improper col-
lection of a legal tax. The language of the opinion if divorced
from the facts of the case may give some countenance to this claim.
If however the facts are kept in view, and the opinion is regarded
as disposing of that case simply, without intending to go beyond
that and lay down a rule binding in other and different cases, it
cannot justify the claim made. If otherwise, and the doctrine is
rcaliy established as broadly as contended, it is high time that we
come to a pause and consider whether we have not gone too far —
whether we have not in fact imperiled the rights of the citizen by
placing them at the mercy of those who are in authority. We
understand the authorities to hold that the tax collector will not
ordinarily be interfered with by an injunction so long as he is at-
tempting to collect taxes of the person against whom, or the prop-
erty on which, they were assessed ; in other words, so long as he is
acting within the apparent scope of his authority. But this immu-
nity has^not been and may not be extended to a collector who is
acting outside the limits of his authority. We cannot therefore
consent to cast off all restrictions and limitations and say that a tax
collector will not bo restrained from collecting any tax of any per-
son or from any property he pleases, and that the party aggrieved
will be remitted to his remedy at law; and that too notwithstanding
any laches of the authorities in omitting to collect at the proper
time and of the proper person. That this is not too broad a state-
ment of the claim is apparent from the facts of the case.

A portion of these taxes were assessed on other property of Mi*s.
Alden's. All were long since overdue, and it is now at least doubt*
f ul whether any part of them is in any sense a lien on the petition-
ers' property. The authorities have had a reasonable and ample
opportunity to collect the whole of Mrs. Alden. They omitted to
do so, and now attempt to compel the petitioners, atter strangers
to a portion of the taxes at least, to pay the whole or submit to a
sale of their lands.

That this court did not intend to deprive the Superior Court of
the power to grant injunctions in extreme cases — and we regard
this as an extreme case — we think is apparent from the language
used in the cases referred to. In Arnold v. Mxddletown the lan-
guage is, " Such an interference " (an interference by an injunction)
'^ might at times be dangerous to the safety of the State, and is
not to be resorted to except for the most imperative reasons.'* in



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OCTOBER TEKM, 1879. 73

Seeley v. Town of Weatport.

Rowland v. First School District of Weston, the marginal note is,
*' A conrt of equity will not, except in an extreme case, interfere by
injunction with proceedings for the collection of taxes." In the
case of Waterbury Savings Bank v. Lawler, the tax was assessed on
pi-operty mortgaged, against the mortgagor. The mortgage had
l>een foreclosed and the tax-warrant was levied on the property after
the title had become absolute in the mortgagee. The court, in re-
ply to the suggestion that it was a third party applying for an
injunction, whose property was to be taken for the taxes of another,
said with emphasis that the proceedings were against the "identical
property on which the taxes were assessed,^' and thereby distin-
guished it from the *' flagrant case suggested," of attempting to
collect one person's tax out of another or out of property which had
BO legal connection with the taxes in question. We now have that
identical "flagrant case," and it seems to be carefully excluded
from the scope of that decision by the concluding sentence of the
opinion, which is as follows: " When therefore the tax collector,
Hs in this case, proceeds against either the proper person or the
proper estate to obtain the taxes, and adopts the usual and regular
methods oi procedure, we see no good reason why it does not con-
travene the rule of public policy to interfere with the proceedings
by injunction, as much in one case as in the other."

In the case before us, the proceedings being neither against the
proper person nor the proper estate in any just sense, we must re-
gard them as not within the scope of the collector's powers.

We conclude therefore that neither considerations of expediency
nor reasons of public policy required the court to refuse the injunc-
tion, while the manifest injustice of requiring one man to pay the
taxes of another, when neither he nor his estate bears any legal re-
lation to the taxes assessed, imperatively demands this specific
remedy, unless there is adequate remedy at law. This brings us to
a consideration of that question.

The legal remedy, if one exists, is found in one of two forms, or
possibly in both; by paying the tax to prevent a sale of the land
and bringing a suit to recover it back, or by allowing the sale to be
consummated and then resisting the title of the purchaser. The
first is the ordinary mode of proceeding when a levy is made on
personal property. It has been supposed that that remedy was not
open to a party when a tax-warrant is levied upon real estate, under
the authority of Sheldon v. South School District in the West
Vol. XXXVI - 10



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74 CONNECTICUT,



Seeley v. Town of Westport.



Society of Sujffield, 24 Conn. 88. It may be doubted whether that
decision was intended to go so far as that. However that may be,
80 far- as our preseut purpose is concerned it may well stand as a
correct disposition of the matter then before tlie court. In that
case the money was paid, not to avoid imprisonment or the sale of
goods, nor even to prevent the sale of landi?. The plaintiff rath(k~
became a party to the sale by becoming a purchaser and accepting
a deed. The court say, " the money was paid rather to perfect the
sale than to prevent it" Under *the circumstances the court held
that it was voluntary payment and not a payment by duress. But
that is hardly an authority for the position that a payment of
money to prevent the sale of lands to enforce an unjust and iHegal
demand is a voluntary payment. There would seem to be quite as
much reason for a man to protect his land in that way as personal
property.

But if this distinction is untenable, and that case is to be re-
garded as an authority for the doctrine that any payment of money
to prevent the sale of one's real estate is necessarily a voluntary
payment, it is worthy of serious consideration whether that ciiso,
m view of our recent decisions, to that extent ought not to be over-
ruled. Since that decision was promulgated we have held, in the
decisions already referred to, that ordinarily a court of chancery
will not interfere to restrain the collection of a tax. If now, being
deprived of that remedy, the law is so that he may not pay the de-
mand to prevent the sale of his real estate and contest the legality
of the tax in a suit to recover it back, there remains but one course
open to him, and that is to submit to the sale and resist the title
of the purchaser as best he may. What consequences follow?
The litigation in all such cases is transferred from the town or
other corporation, where it properly belongs, to the purchaser. He,
knowing that he is buying a iawsuit, offers only a nominal price
for the land, and it must be sold at a ruinous sacrifice. If the tax
debtor succeeds in defeating the title, the town collects the tax of
the purchaser, and he has in addition to that the burden of paying
for unsuccessful litigation. If the purchaser sustains his title, the
tax debtor loses his land at a mere nominal price. It is neither wise
nor just to shut up a party to a remedy productive of such
consequences.

We think therefore that the law is so that a man may protect hia
land from a sale, or prevent a cloud upon his title, by paying the



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OCTOBER TERM, 1879. 75

Ward V. Dick.

^xand have bis remedy to recover it back if the tax was illegal
aod unjust But conceding tbat a party bas that remedy, it by no
^eans defeats tbe present action.

Wc doubt the justice or propriety of turning a party around as

^'o his remedy, in the face of the decision in Sheldon v. South School

^Irici, In view of that case the remedy at law was not entirely

^/ear, and in that sense at least was not adequate and complete. If

tterefore there was nothing else in the case we might hesitate to

Asmiss the bill on that ground.

But there is another consideration which seems to us conclusive

upon that point. Thus far we have treated this question as though

these petitioners were the tax debtors, either as being the persons

agai vk&i whom the taxes were assessed, or as owning tlie land now

Hable for them. Whereas the fact is, that in respect to a portion

of the taxes now demanded, if not the whole, they are in no sense

lia'ble. The attempt therefore to collect that portion of the taxes

0^ ttie petitioners is an unmitigated wrong, and the principles

^^ich apply to an ordinary party who prima facie owes the tax,

has no application to these petitioners. The rate-bill and tax-war-

r^^t are no excuse for, much less a justification of, an attempt to

deprive these petitioners of their property or becloud their title.

>^ oannot be tolerated that a mere wrong-doer without justification

^^ Excuse, contemplating an injury of this description, may say to

^icve party, "You have no preventive remedy; you must either pay

the money demanded, or submit to the wrong and seek such redresa

as may be left to you afterward."

There is no error in the judgment of the court below.

Judgment accordingly.



Ward v. Dick.

(47 Conn. 800.)
Slander — evidenee of repetitions-^JueiyieaUeii.

^^ action of slander, evidence of repetitions after salt is admissible to show
' '^ice, bat not as an independent ground of damage.* The same is tme ol
**^ ^proven justification.

•COntro, FYazier ▼. MeCloOsew (jBO N. Y. 837), 19 Am. Rep. 19B.



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76 CONNECTICUT,



Ward V. Dick.



ACTION of slander. The opinion states the point. The plaint*
iflP had judgment below.

A. S. Trmt and W. F. Tat/lor, for defendant

S. Fessenden and G, Stoddard^ contra.

Granger, J. The only question in this case, which we think it
important to consider, is with regard to a misdirection in the charge
of the judge. The action is an action of slander, and the slanderous
words alleged are that the defendant, on the 20th day of Noyem-
ber, 1875, said that the plaintiff was '* a forger and had forged the
defendant's name, and that he could and would send the plaintiff
to the State prison for having committed the crime of forgery."
The declaration contains three counts, each stating the same slan*
derous w^ords in substance, and all on the same day. The cause was
tried to the jury on the general issue, with notice that the defend-
ant would prove that on the 23d day of July, 1875, the plaintiff,
having in his hands a clieck made on the 14th of that month by
James W. Tappan for $57.95, in favor of the defendant, upon the
Second National Bank of New York, and payable to the defendant's
order and then his property, without authority and with intent to
defraud the defendant, falsely indorsed the check with the defend-
ant's name and in imitation of his signature, and presented the
check so indorsed to the cashier of the Connecticut National Bank
of Bridgeport for payment, and then falsely represented to the
cashier that the name indorsed was the genuine signature and in
the handwriting of the defendant, with intent to defraud said bank
and the defendant; that the cashier then relying upon the apparent
genuineness of the indorsement, and upon the representations of
tho plaintiff, paid to him the sum of $57.95; that the plaintiff about
said 23d day of July, in like manner and with like intent indorsed
other checks of the defendant payable to his order, the amount and
particulars of which are known to the plaintiff, but are unknown
to the defendant; and that if any of the words set forth in the
plaintiff's declaration were spoken by the defendant concerning the
plaintiff, the same were spoken concerning the checks aforesaid,
and the indorsement thereof by the plaintiff.

Upon the trial the plaintiff having introduced evidence of the
speaking by the defendant of the slanderous words charged in the
declaration, introduced evidence without objection of the repetition



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OCTOBER TERM, 1879. 77

Ward V. Dick.

of the same after the bringing of the suit, for the purpose of show-
ing the motive which induced the original defamation .

It was admitted by the plaintiff, and appeared in evidence, that
on the 29th or 30th of July, 1875, while the plaintiff was in the
chai'ge and management of a hotel at Black Rock in the town of
Bridgeport, called the Short Branch Hotel, under an arrangement
with the defendant, he indorsed the name of the defendant on the
check of one Tappan, for the sum of 157.95, payable to the order
of the defendant, in whose name the business of the hotel was con-
ducted, the same having been received by the plaintiff, who claimed
to be a partner with the defendant in the business, in payment of
a bill due from one of the guests of the hotel, and that the plaint-
iff presented the check so indorsed to a bank in Bridgeport, and
received the money due thereon, and duly entered the same on the
books of the hotel.

The court charged the jury that " when a party utters slanderous
words, in the belief at the time that they are true, and repeats them
afterward when he has ascertained and knows them to be false,
evidence of such repetition is admissible to aggravate or increase
the damages."

We think this charge was calculated to mislead the jury, and
may have led them to suppose that it was their duty to give dam-
ages not only for speaking the words originally, but also for such
repetition.

The true rule in relation to after-spoken words is correctly laid
down in the case of Williams v. Miner, 18 Conn. 472, by Chief
Justice Church, by whom the able opinion in that case was given,
and in which all the other judges concurred. The language of the
chief justice is as follows: "As additional grounds of recovery
these after-spoken slanderous words were not provable, and so the
judge at the Circuit ruled, but he properly admitted them to show
the spirit of the defendant in speaking the words already proved,
that it was malicious and vindictive. Where the subsequent words
impute the same crime, or may be fairly considered as equivalent
to a renewal or repetition of the same defamatory charge as those
already proved, they may be admitted as legitimate evidence of the
original malice of the speaker, but not as separate grounds of action
where there is no additional count to embrace them." In the case
of Swift V. Dicherman, 31 Conn. 289, this principle is fully recog-
nised and approved, and Judge Sanford says in the opinion in that



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78 CONNECTICUT,



Ward V. Dick.



case, speaking of the evidence offered of words spoken after those
alleged in the declaration: ** This evidence was used only for the
purpose of showing the defendant's malice at the time he spoke
the words declared on. It was admissible for no other purpose.
Tlie jury undoubtedly were, as they always are, instructed that no
damage should be given for any defamatory utterances except that
declared on in the case on trial" This is a safe and wholesome rule,
and quite as rigid as it ought to be. We think the rule laid down
by the judge at the Circuit goes beyond this, and that it gives greater
force to the after-spoken words than is warranted by law. No cau-
tion was given the jury in relation to the assessment of damages for
the after-spoken words, the real object and purpose for which they
were offered and the true ground of their admissibility seems to
have been lost sight of, and the jury were told that such repetition
was admissible, not as evidence of malice in the original speaking
of the words, or as showing the motive which induced the original
defamation, but to aggravate and increase the damages. It might
bo quite difficult for the jury to discrinjinate between actually
estimating damages for each subsequent repetition of the words, and
aggravating or increasing the damages consequent upon the original
utterance. They were told that they might increase the damages
in consequence of the repetition of the words, and they of course
may have understood from this that they could add such sum to the
damages for each repetition as they thought right, and so in effect
give actual damage for words not declared on.

The charge of the court in relation to the effect of the notice
and the failure to prove the truth of the words spoken as bearing
upon question of damages may possibly have misled the jury and
induced them to give substantial damages directly for that cause.
The jury were told that ''when the defendant pleads and offers
evidence, tending, but failing to prove the slanderous words he has
spoken, it ought not, if it is done in good faith, and not with the
purpose of spreading and perpetuating the slander, to aggravate
the damages. But if it is not done in good faith, or if it was
done with the purpose of spreading and perpetuating the slander,
it is for the jury to say whether it ought not to aggravate the
damages."

The first part of the above quotation is unexceptionable* The
latter part is objectionable upon the same principle and foi ibe
same reason as the portion of the charge already considered.



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DECEMBER TERM, 1879. 79

Burritt v. Belfy.

We are aware of no pnuciple upon which damages can be directi/
assessecl to the plaintiff on account of the allegations in the defend-
ant's \y\esi and a failure to prove them. We suppose that the plaintiff
must i-ecovor damages, if at all, upon the strength and sufficiency
of the allegations in the declaration. If they fjiil him, the plea
and the failure to prove it can render him no aid. The true rule
sciiins to be this, if the defendant maliciously, and for the pur-
pose of spreading and perpetuating the slander, pleads the truth of
the words ia justification and fails to prove it, it may be regarded
as evidence proving or tending to prove malice in speaking the
words originally ; and may tend indirectly to increase the damages
for speaking the slanderous words charged in the declaration by
showing the degree of malice in speaking them. It is a cJrcum-
8tance to be considered in estimating damages for the cause of ac-
tion alleged in the declaration and proved, but is not of itself a
oaase for which damages may be directly assessed in that suit,

A new trial is advised.

In this opinion the other judges concurred.



BUBEITT V. BbLFT.

(47 Ooan. 83S.)

Judgment '^^ former — bar — pari of entire demand,

^««gment In an action for nse and occupation of land for one month's pent,
'Bcovered pending a former action in another coart, for nse and occnpation,
l^der the same lease, for several previous month's rent. Is a bar to that ac
^"^0, the rent being all due when the former action was brought.*

ACTION for use and occupation of real estate. The opinio^
states the case. The plaintiff had judgment below.

*^- ^. Webster and J. ffNeill, for plaintiff in error.

• ^- Cokf for defendant in error.
^^o itis, J. Under a parol lease for a term of years* the defend*

^^•%iiie effect, Roeenmudkr t. Lampey (80 111.212), 31 Am. Rep. 74, and note 75



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so CONNECTICUT,



Burritt v. Belfy.



ant, from the Ist of October, 1875, till the let of November, 1877,
occapied certain real estate belonging to the plaintiff for an agreed
rent of thirty-seven dollars and fifty cents per month, payable
monthly in advance. The rent was not paid according to agreement,
and on the 3l8t of October, 1877, there was dne the plaintiff the
sum of 1173.63, and on that day the present snit was commenced,
returnable to the city court of the city of Waterbury holden on the
first Monday of December, 1877, for the purpose of recovering the
rent due prior to the Ist of October, 1877. On the Ist day of
November, 1877, the plaintiff commenced another suit, returnable



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 12 of 123)