
    Chauncey Robbins vs. Elisha Wolcott.
    
      A piece of land left by an intestate was distributed, as a part of bis estate, among bis children. Betweén the time of bis death and the distribution, which was several years, the children, who had occupied the land in common, had exchanged a rod from the north end of the lot for a rod from an adjoining lot at the south end, and the land in question, at the time of the distribution, was treated and understood by them as being the lot defined by the altered boundaries. In an action of trespass brought by a grantee of one of the distributees against the grantee of another, involving the question of the location of tbe dividing line between them, such line being within the original lot, but its location depending upon what was to be taken as the north line of the lot distributed, it was held that parol evidence of the state of things at the time of the distribution was admissible, for the purpose of applying tbe distribution to its subject matter, and of showing that the lot as altered, and not the original lot, was the one actually distributed.
    Held also that the case was not aifected by the fact that the ex- [ *397 ] change had been *made by parol and that no legal title had passed, both parties having gone into occupation, and the lot as newly defined having been in fact the one intended to be distributed.
    The law in such a case will not make a conclusive presumption that the lot distributed was the lot as bounded at the time of the death of the intestate, nor that it was the lot indicated by the legal title.
    In a bill in chanceiy, brought by A and B against C, praying for an injunction against tbe enforcement of a judgment in ejectment obtained by C against B, A alleged that the land in question belonged to him and that B was only his tenant. Held, in a later suit between C and A, that this was not such an admission by A that he was the real party in the action of ejectment as to make the judgment in that action conclusive upon him.
    Trespass qu. cl.fr. Defendant pleaded title. The issue was closed to the court and the following facts found :—
    The locus in quo was a part of a lot containing about an acre and half, known as the Montague lot—described in the following plan by A B CD.
    
      
    
    
      Some time prior to the year 1810 this land had become vested, by the death of George Montague and Sarah his wife, who had been the owners of it and who died intestate, in their children, Martha, Abigail, Justus and Sarah, as tenants in common. In 1816 a distribution of the land was made, with other estate of George and Sarah Montague, by order *of the court of probate, by which a strip 72180 links [ '*398 ] in width \yas set to Martha on the north side of the lot, a strip of equal width, next south, to Abigail, one of equal width next south to Justus, and one of less width next south, and embracing all that remained of the lot, to Sarah. In the year 1810, prior to the distribution, a strip one rod wide at the North end of the lot had been exchanged with one Robbins, who owned the lot next south, for a strip of the same width at the south end of the lot. The strip at the North end constituted at the time of the distribution what was known as Warner’s lane', and the Montague lot as then occupied and treated by the parties was the lot represented by the letters E F G H on the plan. The shares of Martha and Abigail had, at the time of the alleged trespass, become vested in the defendant, and those of Justus and Sarah in the plaintiff. The locus was a strip one rod wide, represented on the plan by ah r, d, and this strip belonged to the plaintiff, if the distribution was to be considered as embracing the Montague lo.t as originally bounded, and to the defendant'if it was to be considered as applying to the lot as practically defined at the time of the distribution ; and the question as to the application of the distribution was the principal question in the case.
    The court found, with regard to the exchange of the rod at the north end of the lot, for a rod from the Robbins lot at the south end, that in the year 1810, one Robert Robbins, who then owned the lot next south of the Montague lot, made an arrangement for the exchange with the guardian of the Montague heirs, who were then minors; that Robbins took possession of the rod at the north end, and the guardian of the Montague children of the rod from the Robbins lot, but that no conveyances were made ; that Robbins soon after conveyed the. north rod to one Warner, and that the guardian, from the time of the exchange, treated the rod thus taken by him as a part of the Montague lot, and that it was occupied as a part of that lot at the time of the distribution ; that the fence at the north end of the lot had been moved *down one rod, so as to ex- [ *399 J elude the rod taken by Robbins, and that there was no fence on the south line between the Montague lot and the Robbins lot; that the distributors, in the vear 1816, distributed the Montague lot as it was then occupied by the guardian of the Montague children, and in setting their respective shares* to the heirs commenced at the south line of the Warner lane ; and that the distributees always afterwards understood and treated the distribution as applying to the lot thus changed,* and as a. just and legal distribution of the lot, and while they retained their interest in the land occupied their several shares in. severalty under it.
    Upon these facts the court, was of opinion that the locus in quo was to be considered as falling within the share of Abigail Montague, and so as belonging to the defendant, and' accordingly rendered judgment for the defendant.
    Upon the* trial the plaintiff objected to proof of the exchange of the two rods, on the ground that the contract was by parol only, and that no written memorandum thereof was shown to have ever been made.. But the court overruled the objection, and received the evidence for the purpose of showing title in the defendant to the locus in quo, in. connection with the other facts set forth in the finding.
    The plaintiff further- objected to* the admission of the distribution in evidence, and asked that it should be ruled- out,, on the ground that in law it must be held to refer only to the legal title of the Montague lot, and, inasmtich as it designated no other line for the location of their distributive shares than the “north side of the Montague lot,” that that expression, by legal construction, must be taken to mean- the north line of the lot as the legal title thereof then stood, without reference to the parol exchange, which could not convey any title. But the court overruled the objection,, and received the distribution, in connection with the other facts set forth in the-finding, as establishing in Martha Montague a title to a share of the Montague lot, 72-/0 links wide, commencing at the south side of said north rod.
    For the purpose of rebutting the claim of the defendant, that the south rod was a part of the Montague lot',, and that the defendant, as grantee of Abigail Montague,, had a* legal [ *400 ], title to the locus in quo, the plaintiff offered, to- *prove that, in September, 1858, a judgment was recovered in an* action off ejectment in the superior court for Hartford county, by the present plaintiff, against one Charles Wolcott,, in which said south rod was adjudged to be the. property of the plaintiff in severalty,, and not to be a part of the Montague lot, (of the two south distributive shares of which the plaintiff and defendant were then owners in common,) and in which, the south distributive share was adjudged to commence at the north line of said south, rod. And to- prove the judgment, and that the suit was in reality between the parties to the present suit, (between whom the plaintiff claimed that the same would be conclusive evidence of the facts evidenced thereby,) and that the present defendant was the real defendant therein, the plaintiff offered in evidence a bill in chancery of the present defendant and the said Charles Wolcott against him, in which he claimed that sundry admissions were made by the present defendant as to the said Charles Wolcott’s being his tenant, and as to his being himself the real party in interest in the suit. This bill may be found substantially set forth in the report of that ease in 26 Conn. R., 236. The court however received the evidence 'only as containing admissions of the defendant against his interest, and as establishing, by itself, the fact that such a judgment had been recovered by the plaintiff against the said Charles Wolcott, but refused to receive it-for the other purposes for which it was offered by the plaintiff, and held that the judgment was not conclusive on the present defendant.
    The plaintiff excepted to these- rulings of the court and moved for a new trial.
    
      jL. F. Robinson*, with whom was H. C. Robinson, in support of the motion.
    1. Proof of a parol exchange of land was inadmissible. It could confer no title of itself, and could be received only as explaining the possession of a party claiming under it. But the land embraced in the exchange was not the rod in controversy, which was in the centre of the Montague lot; nor does the finding disclose any claim or evidence of an “ad- [ *401 ] verse possession of this rod. On the contrary this rod belonged to some one of the Montague heirs; and there was no pretence that one of them occupied adversely to the other. There is no such thing as a constructive adverse possession ; it must be actual.
    2. The distribution was not lawful evidence in the cause. It was received because it referred to the “ north side of the Montague lot.” This the court construed as referring to the north side of the Montague lot, as the same would have been had the parol exchange operated to change the legal title of any part of it, and therefore received the distribution as evidence for the defendant. We say that, as this was an instrument professing to confer a legal title, it must be construed, in the absence of express language to the contrary, as referring to the land as the legal title then stood. We say further, that no equitable title to any part of the lot had accrued at the time of the distribution under the parol exchange. Chancery would not have enforced the contract. The parties who made it had no right to make it.
    3. The judgment in the ejectment suit of 1853 was'admissible for the purpose for which it was offered by the plain tiff,’and proper proof of it was also tendered to the court ; and, when proved, it should have been held conclusive in the present suit. 1st. It adjudged the south rod to be the plaintiff’s in severalty, which contradicted the defendant’s claim in a material point. It adjudged the two shares of the Montague lot, owned at the time this suit was brought by the plaintiff,, to extend so far north as to embrace” the locus in quo. 2d. The admission of the defendants that such a judgment had been recovered was proper evidence of the fact. It was unnecessary for us to exemplify it. Smith v. Palmer, 6 Cush., 513. Slatterie v. Pooley, 6 Mees. & Wels., 663. The form in which the admission was made, to wit, by the defendant’s bill in chancery, did not affect its legal character as an admission. Buller N. P., 235. Slack v. Buchanan, 1 Peake, 5. Parsons v. Copeland, 33 Maine, 370. Merchants Bank v. Marine Bank, 3 Gill, 96. Van Wort v. Wolley, Ry. & Mood., 4. Indeed the court below [ *402 ] received it so far as to decide the *fact that such a judgment was recovered as the petition in chancery described. 3d. In connection with this proof of a judgment, the defendant’s petition in chancery, or in other words his admission, should have been received by the court, to show that the defendant was the real, defendant in the ejectment suit, and that the recovery, although in form against his tenant, Charles Wolcott was in reality against himself. Other parties besides those who appear of record, may, by their own acts, become bound by the judgment therein, and extrinsic evidence is necessarily and universally admissible to prove privity of this sort. Kinnersley v. Orpe, 2 Dough., 517. Bradley v. Bradley, 3 Jones, 311. Farnsworth v. Arnold, 3 Sneed, 252. Warfield v. Davis, 14 B. Monr., 40. Elliot v. Threltseld, 16 id., 341. Patton v. Caldwell, 1 Dal., 419. Boynton v. Willard, 10 Pick., 166. Brown v. Sprague, 5 Denio, 545. Kent v. Hudson Rio. R. R. Co., 22 Barb., 278. 4th. The court should also have decided that the judgment so proved to have been recovered against the defendant was conclusive in the present action. Bell v. Raymond, 18 Conn., 91.
    
      Welles and Fellowes, contra.
    1. Exception is taken to the admission of parol evidence of the agreement for exchange of lands. But the court did not admit it for the purpose of establishing the defendant’s title thereby, but merely, in connection with other facts, for the purpose of showing whether the two shares purchased by the defendant of Martha and Abigail Montague, and to which he had legal title, embraced the locus in quo. If they did, then the defendant had legal title to the locus in quo.
    
    2. The plaintiff’s counsel objected to the distribution in evidence on the ground that, as matter of law, it necessarily referred to the legal and not the equitable title. If this position be correct, the admission of the evidence did not harm the plaintiff, since it proved precisely what he claimed ; but what presumption of law is there that the parties distributed the legal estate rather than the equitable ? The question as to what they distributed was a simple question of fact, to be ^determined by the evidence. The distribution itself [ *403 ] was clearly admissible. In fact it was equally necessary to the plaintiff and defendant, as the rights of both were determined by it.
    3. As to the effect of the admissions of the defendant in the bill in chancery:—It was the province of the court to determine that from the admissions themselves in connection with the other evidence. The admissions were received, and the only objection is that the court did not hold them to be conclusive upon the defendant. But there is no rule of law that makes such admissions conclusive. On the contrary, the rule is that admissions in pleadings in chancery are very feeble evidence, inasmuch as they are the work of the counsel who drafts the bill. Greenl. on Ev., 212. Buller’s N. P., 235. Doe v. Sybourn, 7 T. R., 3. There are no admissions in the bill which tend to prove that Elisha Wolcott, had not the legal title. The whole bill taken together proves the defendant’s present case, and by introducing it in evidence the plaintiff has made it all admissible. Bristol v. Warner, 19 Conn., 7. But in point of fact, even if the verdict in ejectment were proved to be between the same parties, it does not relate to the locus in quo in the present action.
   Ellsworth, J.

The matter in dispute between the parties is the title to the locus in quo. Both hold under George and Sarah Montague, who are admitted to have had the title at the time of their decease, the plaintiff under Justus Montague of one of the heirs, and the defendant under Abigail Montague another of the heirs.

The estate (for I speak of it as one,) was distributed among the several heirs in 1816, and has ever since been held and enjoyed in severalty by said heirs, or their tenants and grantees, and the question now made is, where the distribution locates the respective shares among the heirs. If the part set off to Abigail embraces the locus in qua, the judgment below is correct and must stand;, if the locus falls into, tlie part set to Justus, the judgment is wrong and must be reversed. So too, the [ *404 ]. judgment must be reversed, if, *in coming to the result, the judge adopted, in finding that this land was set to Abigail, erroneous principles of law.-

The judge has found that, by the distribution and location, the' land in question was set off to Abigail; that is, that in fact it fell within the description and boundaries of her share’, and became hers in severalty, if there was no error in his receiving the evidence which he did re'ceive, going to show this fact.

For obvious reasons, if the distribution and- location gave the land to Abigail, its location is conclusive upon those Who claim in severalty under Justus, for, aside from this distribution, there is no severalty of title in any of the heirs of George and Sarah Montague, or those who hold their rights in the entire" lot which they left. All are then tenants' in common, and on that ground alone, were the fact so, the plaintiff must fail in his- action. Besides, no appeal was taken from the distribution. We do not understand that the plaintiff sets up a title by possession, to the exclusion of those who claim under Abigail,, nor can there be the' slightest pretence for any such thing, since neither the plaintiff nor his ancestor ever occupied this land except as- tenants' of those heirs' who always recognized and upheld thd distribution of 18Í6. If any body has title by possession,, it is on the other side, if that defense had been distinctly set up on the trial'.

In one part of the motion the plaintiff would seem to object to the' introduction of the distribution, but the reason assigned for it shows that he does not object to proof of a distribution, nor of this distribution, if taken with his construction* of it; for he insists that, under that construction', this piece of land- is given in severalty to Justus and not to Abigáil; so that his- objection does not go to the distribution itself, for a distribution is essential to his right to sue the defendant, but to the meaning, force and application of the distribution when admitted; Or, in; other words, lie claims that the distribution, does not prove the defendant’s title to the land in question.

And this brings us to the question,and the only question which* Iras been seriously pressed upon our consideration- by [ *405 J *the plaintiff’s counsel, to wit, is parol, proof, such as act's or conduct, circumstances, agreements of the parti'eá and the like, accompanying- the act of distribution,, admissible to identify the boundaries referred to1 in the distribution ; or, in other words, may a latent ambiguity be explained by evidence aliunde.

The argument is’ that the. words of the distribution, ex vi termini, exclude the land from Abigail’s share and put it into the share of Justus, for Abigail’s share, (seventy-two and x80ths links) is described as being “ next south of Martha’s seventy-two and fyths links,” and Martha’s seventy-two and T80-ths links as being “ on the north side of the lot.” . As these two shares avowedly lie north of the share of Justus’, the plaintiff insists that we must begin on the north side- of the lot and measure off southward far enough to satisfy the shares of Martha and Abigail, when we shall reach the north line of Justus, which, on this theory, is found to be’ north of the piece of land in question, giving it to Justus.

Now every thing turns on the question of fact, where, at what point, did the distributors begin to measure- off to Martha her share, and what did they call and treat as the “ north side of the lot?” And may this fact be shown by parol ? The court has found that the distributors began on the north side of the “lot,” as it was treated and considered to be in 1816', the time when it was distributed. The Warner lane (one rod wide on the north side of the original lot of George and Sarah Montague) having been exchanged and fenced off some six years before the distribution, had never thereafter been occupied, treated or considered as a part of the Montague estate. The’ distributors did not so consider it, nor did the ancestor of the plaintiff. Now the question is, can it not be shown by parol evidence ? Can we not see and ought we not to see, on every principle of law and fairness, what the distributors called and treated as “ the north side of the- lot ?”

What, we ask, was the “ lot ” which was’ to be divided, and which was divided in 1816 by the distributors ? The court below say it was the lot as it lay before the- distributors-*for their apportionment among the heirs, so that [ *406 ] they could possess each one his own in severalty, and that they did not include- the Warner lane, which had been exchanged for a rod of equal value on the south. Let it be- that the Warner lane Was not in 1810, in strictness of law, sold, and conveyed in exchange for the rod on the south, and that the rod on the south’ had' not become attached by a formal conveyance to the lot of the heirs, (though the defendant insists that it had and that the- deed is lost) still, the parties then and ever since have' treated it as done-, and have not signified a. wish: to* have it otherwise for forty years past. As we- have said, the location and boundaries of these respective shares having been known, recognized and acquiesced in for so many years, as founded on the distribution of 1816, which located the north line of the Montague lot as it was at that time, we should with the greatest reluctance yield to the claim of the plaintiff, and at this late day break up a distribution so established.

The plaintiff’s counsel claim that the distribution has to do only with the legal title, and that in this view the distributors must be held, as a matter of law, to havé intended the “ lot ” as it had been six years before the distribution, and to have included in the share set to Justus, land which they in fact did not intend to include in his share. We think otherwise. The title, whether legal or equitable, does not necessarily determine the intended boundaries of the distribution. We look rather to what was actually done, and to what the parties intended, if the application of that intent depends upon a latent as distinguished from a patent ambiguity. Suppose this strip of land on the north, instead of being exchanged and separated, had been sold under an order of probate to pay debts, and thereafter occupied by the purchaser, and it should afterwards appear that the deed of conveyance from the administrator was attested bv a person interested, or was not legally acknowledged, or for other reason was imperfect and so the legal title did not pass ; and after this, the rest of the lot is distributed among the heirs, as if the administrator’s conveyance had been in all respects [ *407 ] a *formal one, and had carried the legal title. Would this strip necessarily pass under the distribution, and become a part of one of the distributary shares, because the legal title might carry the north line of the lot north of the fence ? Such a rule of law would be very harsh in its operation, and ■would be too merely technical for the administration of equal justice among the heirs.

Now, the parol evidence objected to, which was received on the trial, went to prove where the distributors fixed the shares of the respective heirs—that the land in dispute fell within the share set to Abigail and not within the share set to Justus. The object was not to prove that real estate was or could be conveyed otherwise than by deed, or had been or could be distributed by parol, nor to contradict or attack the records of a court of probate ; but, as we have said, to locate definitively, a legal and unobjectionable distribution ; to fix it according to the' boundaries agreed upon and adopted by the parties and the distributors.

It appears, further, that in Sept., 1853, this plaintiff recovered judgment in the superior court, in this county, in an action of ejectment against one Charles Wolcott, for some of the land in question. To prevent the plaintiff therein from talcing benefit from that judgment, the present defendant united with said Charles, (who was his tenant,) in an application to the superior court, asking the court, as a court of chancery, to enjoin against any further proceedings under that judgment, for the reasons set forth in their petition. The petition was heard, but for some cause (not material here,) was not sustained. Certain statements made in that petition, (it being signed by the present defendant,) the plaintiff here seeks to avail himself of, as proving, by admission, that although Charles Wolcott was alone sued in the action of ejectment, yet this defendant, being his landlord, became and was a party defendant therein, and therefore ought to be conclusively bound by that judgment, which determines the title to be in this plaintiff. The plaintiff insists that these facts are proved by what is so stated and admitted under the hand of the ^defendant himself. The defendant denies [ *408 ] this, or that the petition contains any evidence or any sufficient evidence of his being a party defendant in that case. The court received the petition as containing evidence and sufficient evidence, in the admission of the defendant, that there was a recovery in the action of ejectment against Charles Wolcott, but held that it contained nothing which conclusively, or even prima facie, proved that the present defendant was a party in that suit; which, as it appears to us, was all that the plaintiff desired to prove by the record. It certainly did not, in view of the court below, prove the fact for which it was offered, for the defendant in the petition merely avers that he was the landlord at the time, but he does not admit that he was cited in, or that he came in as landlord, or that in any capacity he took upon himself the defense of the action, or had even an opportunity to do it. There is, it is true, a little obscurity in that part of the ruling of the court in which it is said that the court received said evidence only as containing admissions of the defendant against his interest,” but we think this can not be of any injury to the plaintiff, as the petition was not used to prove, and certainly did not prove, that the present defendant was a party in that suit and concluded by that judgment.

We see no cause for granting a new trial.

In this opinion Hinman and Sanford, Js., concurred. Storrs, O. J., dissented.

New trial not advised.  