Opinion
An action to quiet title under General Statutes, § 5113, may now be maintained by an owner of land out of possession.
Argued May 16th, 1929
Decided July 10th, 1929.
APPEAL by the plaintiff from a judgment rendered in favor of the defendant by the City Court of New Britain in an action to quiet and settle title to certain real estate, taken to the Court of Common Pleas for Hartford County and tried to the court, Molloy, J.; judgment for the plaintiff and appeal by the defendant. No error.
John J. Casale, with whom, on the brief, was S. Gerard Casale, for the appellant (defendant).
Donald Gaffney, for the appellee (plaintiff).
The complaint alleged that the plaintiff was the owner of a strip of land fronting five feet upon Corbin Avenue in New Britain, that the defendant claimed an interest in the strip adverse to his title and asked for a judgment quieting and settling his title to the property under the provisions of § 5113 of the General Statutes. The defendant made two claims of law upon the trial, first, that the plaintiff could not maintain this action because he had not proved that he was in possession of the land in question; and second, that the plaintiff had failed to prove title because, at the time of the conveyance of the property to him, his grantor was ousted of possession, the property then being in the possession of the defendant's predecessors in title. We have recently decided the first question adversely to the defendant's contention. An action to quiet title under § 5113 may now be maintained by an owner of land out of possession. Gaul v. Baker, 105 Conn. 80, 134 A. 250; Bowne v. Ide, 109 Conn. 307, 147 A. 4. The second question is settled by the finding. The defendant claimed that there was a fence that enclosed in his land the disputed strip and that he and his predecessors in title occupied the strip adversely to the plaintiff and his predecessors in title, and sought to have the finding corrected by stating that fact. There was some evidence as to the existence of a fence, which the court has found stood about five feet from a house upon the premises of the defendant, but there was no evidence that the fence was not on the division line between the property of the plaintiff and that of the defendant as shown by the deeds, and the evidence does not warrant the requested correction of the finding. The single ruling on evidence to which exception is taken was clearly correct.