Lee v. Stiles , 21 Conn. 500 ( 1852 )

Waite, J.

It is claimed, by the plaintiffs in error, that the original complaint against them, is insufficient, for want of an averment, that the complainant was in the actual possession of the premises, at the time of the alleged forcible entry.

It is true, there is no direct averment to that effect; but such possession must necessarily be implied from the other allegations in the complaint. Thus, it is averred, that the defendants entered upon the land, belonging to the complainant, and put him out of possession of the same. Now, if the defendants actually put the complainant out of the possession, it would seem to follow, as a necessary consequence, that he must have been in possession, when the act was done.

An averment of a fact need not be in express terms: it is sufficient, that it appear, by necessary implication from the words used. Com. Dig. tit. Pleader. C. 77. Co. Litt. 303. a.

“It is indisputably settled," says Judge Hosmer, “that that, which is apparent to the court, and appears from a necessary implication out of the record, is the same as if it were expressly averred.” State v. Nichols, 8 Conn. R. 499.

2. It is claimed, that the court erred in admitting the deposition of Kimberly. The objection seems to be founded upon the claim, that Chittenden, with whom notice was left, was not, at the time, the attorney of the defendants. Whether he was, or was not, was a question of fact, to be determined by the court, upon the evidence before them; and it does not appear from the imperfect statement in the bill of exceptions, that that was found either the one way or the other, unless it may be implied from the circumstance, that the deposition was admitted by the court.

Before we can advise the superior court to reverse the judgment of an inferior tribunal, for the illegal admission of evidence, that illegality must be made to appear upon the face of the record. In this case, it seems not to have been denied, by the defendants, that Chittenden was their attorney; and the only enquiry must have been, whether his employment was before or after the time, when he was notified.

Upon this subject, the record furnishes no evidence beyond the simple denial of the defendants. If the deposition contained the requisite certificate, that the attorney, in the case, was duly notified, it is difficult to see upon what evidence it could be rejected.

But for another reason, this claim of the plaintiffs in error, ought not to prevail. It appears, that in addition to notice given to the attorney, notice was given to two of the defendants in the case. As against them, the deposition was clearly admissible. But the objection was general, without any discrimination between those who had, and those who had not, personal notice.

Had the defendants wished the deposition excluded, as against those not thus notified, they should have made their objection accordingly. The plaintiff then would have had an opportunity of making his election, either to meet the objection, or let the deposition be received as evidence only against those duly notified.

3. It is further insisted, that the writ of restitution was inadmissible, because it was unaccompanied by the judgment, and because, it was issued in a case between other parties. Had the evidence been offered to establish a title by virtue of the judgment, the objection would have been well founded.

But that was not the object. The testimony of the officer was proper to shew that the complainant took possession of the property under and by virtue of the writ; and the writ, to shew what the property was, and the extent of the complainant’s occupancy.

Even an unacknowledged deed and the record of a judgment between other parties, accompanied with evidence that a party entered into possession under such deed and judgment, is admissible for the purpose of shewing the nature of the occupancy, and that it was adverse. Rogers v. Hillhouse, 3 Conn. R. 398.

It is finally said, that the evidence shewing the defendants’ expenditures upon the property, should have been received, as conducing to prove, that they had not voluntarily abandoned the possession, when the complainant entered.

The issue between the parties was, whether the defendants had made a forcible entry upon the premises, and unlawfully detained them, by means of which the complainant had been ejected, and held out of possession. The fact that they were previously in the lawful possession, and so continued down to the time of the alleged injury, was proper to be shewn, for the purpose of rebutting the claim that there had been an unlawful entry. But whether they had expended much or little upon the property, could have no material bearing upon that issue. It was too remote, and was properly rejected.

We are therefore of opinion, that there is no error shewn upon the record; and so we advise the superior court.

In this opinion the other judges concurred.

Judgment affirmed.