Richard and Julia Cahill were husband and wife, married prior to 1877. The plaintiffs are their children and claim in the latter's right and as her heirs at law. Julia died in 1885. In 1887 Richard married, for his second wife, the defendant Mary Cahill. Richard died in 1901, leaving surviving him his last named wife, and leaving also a will which was duly probated. The defendant McMahon *Page 523 is the administrator of his estate cum testamento annexo. The will gave his widow, Mary, the life use of his estate, and the defendant McMahon the remainder in trust for certain persons and purposes. The defendants thus claim through Richard under the will. The record title to the property in question was never in either Richard or Julia, but stood in other persons, the last conveyance being to Wallace and Sons, a corporation, which received it in 1873. No deed to either of said couple was shown in evidence, nor was proof of a copy or contents of any such deed produced. The conduct of the case assumed, although the fact is not expressly found in that form, that in some manner between them they were in possession of the land and exercised dominion over it during the last twelve years at least of their married life. The plaintiffs claimed that the wife was so possessed in her own right, independently and apart from her husband; the defendants, that the husband was. The plaintiffs claimed to be entitled to recover possession in this action (1) upon a title shown in their mother and therefore in themselves, and, failing in that, (2) upon their possessory rights in succession to their mother dying possessed.
With respect to the last claim the court very properly ruled in accordance with the defendant's contention, that the plaintiffs could not recover without first showing a legal title. The court adopted as its ruling the language of Judge Swift in his Digest, Vol. 1, p. 507, to the effect that the plaintiffs must recover, if at all, by the strength of their own title and not by the weakness of the defendants', and that it behooved them not merely to show a better title than the defendants, but a legal title. The plaintiffs concede the correctness in general of this principle invoked by the court, but ingeniously contend that it is not a complete statement of the law. Their argument is based upon the existence in the old English common law of certain possessory real actions, and especially the writ of assize, under which an heir or devisee, whose ancestor or devisor had died seized of an inheritance, was put into possession thereof as against a stranger who had intervened before the heir or devisor had *Page 524 entered and himself made entry and obtained possession of the freehold. 3 Blackstone's Comm. 184. It is completed by the dictum from Swift's Digest, to the effect that out action of ejectment comprehends and answers the purpose of all the old common law real actions, and the further dictum that, like writs of entry and assize, it will lie for possessory rights. 1 Swift's Digest, 507. The trouble with this argument is that these dicta from Judge Swift do not comport well with his later statements upon the subject, of which the passage already referred to is an example, and is in direct antagonism to the repeated utterances of this court. Talcott v. Goodwin, 3 Day, 264; Tracy v. Norwich W. R. Co.,39 Conn. 382; Bristol Mfg. Co. v. Barnes, 54 id. 53. In the second of the cases cited, we said (p. 394): "We however ought to say that we regard it as elementary law in Connecticut that in this action of disseizin or ejectment the plaintiff must recover, if he recover at all, by the strength of his own title. Ample remedies are provided by actions of trespass and by proceedings for forcible entry and detainer for the disturbance of quiet possession, and we see no good reason for any change or mitigation of the familiar rule in respect to proof of title in ejectment." The court did not err in ruling as it did.
The plaintiffs claimed to have satisfied the rule adopted by the court, and to have shown a legal title. They sought to prove by direct evidence the existence of a deed which had become lost. The court found that they did not succeed in this regard. For this finding, assuming that the issue was to be determined upon direct proof alone, the evidence furnished ample justification. At the eleventh hour, but in time perhaps, they claimed to have established a title by adverse possession. The court found otherwise, as it was clearly bound to do upon the evidence. The plaintiffs, evidently foreseeing these results, did not stop here in their claims. They made, first, the broad claim that having shown possession in their mother at her death and for a period of years prior thereto, the court should, in the absence of countervailing testimony, have presumed and found that she had *Page 525 title. This general claim, which has been urged upon us the most vigorously of all the plaintiffs' many claims, was made in the court below, and here, in several forms, to wit: that Mrs. Cahill's possession was sufficient evidence of title, that therefrom a lawful grant should be presumed, that her possession and repeated acts of ownership were to be presumed to be lawful and pursuant to a legal title, that such possession would create a presumption that she was the legal owner, that not only the existence of a deed but all the essentials of a valid one would be presumed, that this evidence established a prima facie title which was good and sufficient until overthrown, etc. This claim, in whatever form propounded, was not well made.
The subject of presumptions of a grant from possession had an exhaustive discussion in Sumner v. Child, 2 Conn. 607. It was there decided that a grant of a corporeal hereditament would never be presumed from possession, however long continued; the whole subject, so far as corporeal hereditaments were concerned, being regulated by the statute limiting the right of entry. The court was far from saying, as we shall have occasion to see later, that a presumption arising from possession and acts of ownership could never be of help in establishing a title. What it did say, was that such a presumption could not of itself have the operative effect of creating or establishing a title; that a title could not be presumed therefrom which would have the force and effect of a title proven. So it is that a bare presumption of a title thus made cannot satisfy the requirements of a rule which prescribes that a plaintiff in ejectment must recover by the strength of his own legal title shown and not by the weakness of his adversary's. Were it otherwise, we should have a rule which was no rule. For what would it profit to say that an ejectment plaintiff may not recover upon proof of a bare possessory right, but must show a legal title, if in the same breath we should say that a legal title might be inferred from mere possession?
The true office of a presumption from possession and acts of ownership, and its use in proof of title, is clearly indicated *Page 526 in this case of Summer v. Child, 2 Conn. 607. The possession and acts of ownership may with other circumstances be proven to perfect the evidence of title. The possession and acts are admitted as secondary, corroborative evidence of an actual conveyance, or of some accompanying requisite of which the original and best evidence is lost. The admission of this evidence assumes the theory of an actual conveyance, as well as the existence of other evidence of a different character rendering it probable that such a conveyance was made. It is received as one piece of evidence which, with other testimony, tends to prove that a conveyance in fact was made, and to enable the trier to find, from the whole evidence, such conveyance in fact. The evidence in question is not received for the simple purpose of creating a presumption which should of itself have operative effect. The presumption to be derived from the evidence is one for evidential effect; that is, it is to be weighed and considered in connection with other testimony, and the presumptions and inferences therefrom in its bearing upon the ultimate question of fact to be determined, to wit: the question of a conveyance in fact. This distinction which the case makes is an important one, and important in its bearing upon the case at bar.
The plaintiffs, as we have seen, endeavored to establish by direct proof the existence of a deed to Mrs. Cahill. In their claims to the court they not only asked that this fact be found upon such proof, but also that the presumption to be derived from her possession and repeated acts of ownership be weighed in connection with the other facts established, and, upon the strength of the conjoined proof, the fact of her ownership, and that such ownership rested upon a valid deed to her, be found. The request, thus made in most explicit terms, was fairly within the rule laid down in Sumner v. Child, 2 Conn. 607, and so far, therefore, their contention was well made.
The court, however, found as a fact that from August, 1873, until the death of Julia, Richard was in possession of the land and, of course, by inference, that Julia was not. This finding of fact, if it stands, accomplishes a complete demolition *Page 527 of the plaintiff's contention. If Julia was not in possession, no presumption from possession could arise in her favor. The finding must stand, unless it was made without evidence, as it clearly was not, or some error of law or some incorrect ruling upon the admission or rejection of testimony may have influenced it.
It is urged upon us that the finding was the result of a legal misconception as to the relation of a husband, married before 1877, to the realty of his wife. A portion of the record is pointed out as indicating a probability at least that the finding was made upon the theory of law that possession of a wife's lands necessarily enured to the husband. This claim the finding effectually negatives.
There remains to be considered a ruling upon the admission of testimony, to which the plaintiffs attach much importance in this connection. Plaintiffs' counsel sought to prove that Richard had never done anything upon or about the land in dispute; in other words, that he had never exercised acts of ownership. Evidence to this effect was excluded.
We see no escape from the conclusion that here was harmful error. The plaintiffs sought to prove that Mrs. Cahill was possessed of the property of and for herself and altogether apart from her husband, and that her husband by refraining from all manner of acts appropriate to ownership — whether in his own right or in the right of his wife — indicated the true relation to the property of the parties, between whom, it is to be borne in mind, the question was. Such a situation as claimed might exist, and the plaintiffs, if they could prove it, were entitled to the benefit of it to enforce and emphasize their contention as to the presumptive existence of the deed sought to be established. Whatever situation the acts of the parties tended to disclose, the plaintiffs were entitled to the benefit of it upon the question of possession, which the court directly determined, and thus indirectly upon the question of title. The plaintiffs sought to show that Mrs. Cahill had always dealt with the land as peculiarly her own property, and that her husband had never acted as one having any rights therein. The evidence excluded was clearly *Page 528 not immaterial, as ruled. The court has found in favor of the possession of the husband. As a part of the evidence bearing upon the question was ruled out, the court erred and to the plaintiffs' manifest injury.
We are further impressed in a study of the finding with the conviction that the court misconceived the real nature of the particular claim we have been discussing. That is perhaps not altogether strange, since so many claims in so many forms were made, and the true basis of claim perhaps little emphasized. The court seems to have confused the claim arising from possession and acts of ownership, with the principles of adverse possession. It is quite evident that the fact of possession was regarded as important only in connection with a fifteen years' continuance and an adverse character. The plaintiffs' claim had no relation to a conclusive presumption such as fifteen years' adverse possession creates. It related to a rebuttable presumption only, and one which was of an evidential character merely. Sumner v. Child,2 Conn. 607. It seems quite clear that in this way also the plaintiffs did not obtain the full benefit of their rightful claims of law.
There is error and a new trial is granted.
In this opinion the other judges concurred, except HAMERSLEY, J., who dissented.