est.

Clark et al. Superior Court, Middlesex County, March 30, 1907. Decision. In this case, upon amended complaint dated September 9, 1905, and counterclaim dated December 31, 1906, judgment is rendered that the title and ownership in and to deposit book No. 41,250 in the Society for Savings of Hartford, and the amount represented thereon on December 1, 1906, viz., $212.03, and accrued interest from December 1, 1906, is in the plaintiff administrator, and that the plaintiff

the bank to determine the ownership of the de-court Judge Gager filed the following mem. posit at the depositor's death, on May 27, 1900. orandum of decision: "Brown, Adm'r, v. There was no issue as against the bank, and it was undisputed that the amount of the deposit on that date was $212.03, and that the owner was entitled to the subsequently accrued interThe court in a memorandum decided that the title to the deposit, amounting on "December 1, 1906," to $212.03, and accrued interest from December 1, 1906, was in the plaintiff's administrators, and that plaintiff recover the same from defendant bank and from the widow's executor. On this memorandum judgment was rendered for plaintiff for $212.03, and accrued interest from December 1, 1906. Held, that the memorandum showed a finding for plaintiff for the amount of the deposit, with interest from the date of the depositor's death, which was erroneously stated as December 1, 1906, instead of May 27, 1900, and that the judgment was therefore subject to correction at a subsequent term so as to award plaintiff interest from the earlier date.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 611; Dec. Dig. § 314.*] 3. JUDGMENT (§ 323*) - CLERICAL ERROR CORRECTION-NOTICE.

Where defendant's attorney appeared, and was fully heard on an application by plaintiff to correct a judgment in his favor by adding interest from an earlier date, it was no objection to an order granting such relief that defendant was not previously notified thereof.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 622; Dec. Dig. § 323.*] 4. APPEAL AND ERROR (§ 1199*)—AFFIRMANCE -CORRECTION OF JUDGMENT.

A judgment in favor of plaintiff, containing a clerical error as to the date from which plaintiff was entitled to interest, was entered March 30, 1907. An appeal was taken on which the judgment was affirmed in March, 1908, after the error was first discovered, when plaintiff applied for an order correcting it, which was granted September 4th of that year. Held, that plaintiff was not chargeable with laches in making his application.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4673; Dec. Dig. § 1199.*] Appeal from Superior Court, Middlesex County; Edwin B. Gager, Judge.

Action by Thomas S. Brown as administrator of Gilbert M. Clark, deceased, against Sarah A. Clark and another. Plaintiff moved to correct a judgment in his favor, and from an order granting the motion defendant Clark appeals. Affirmed.

See, also, 80 Conn. 419, 68 Atl. Rollin U. Tyler, for appellant. Haines, for appellee.

1001.

recover the same from the defendant the Society for Savings, and that the plaintiff recover of the defendant Adelbert S. Clark, executor of the will of Sarah A. Clark, his costs. Also judgment for plaintiff on counterclaim of defendant Clark, executor. Gager, Judge."

The judgment file as originally prepared, following the regular caption, was as follows: "Judgment. This action by complaint, claiming title to a certain savings bank deposit and the book representing the same, known as deposit book No. 41,250 in the Society for Savings of Hartford, Conn., came to this court on the first Tuesday of April, 1904. The defendant Sarah A. Clark died after the suit was entered in this court, and thereafter her executor, Adelbert T. S. Clark, entered his appearance in this action. The case came, then, by continuance to the present time, when the parties appeared, and were at issue to the court, as on file. The court, having heard the parties, finds the issues for the plaintiff. Whereupon it is adjudged that the plaintiff recover of the de fendant the Society for Savings, the said deposit, viz., two hundred and twelve dollars and three cents ($212.03), and accrued interest from December 1, 1906, and that the plaintiff recover of the defendant Adelbert T. S. Clark, executor of the will of Sarah A. Clark, his costs, taxed at dollars and

cents. Gager, Judge."

On the 22d of June, 1908, at a term of said superior court subsequent to that at which said judgment was rendered and held Frank D. by Judge Gager, the plaintiff filed a written motion asking for a correction of the original judgment file, upon the ground that by a clerical error the amount of said deposit was stated to be but $212.03 on the 1st of December, 1906, when in fact it was $212.03, with interest from May 27, 1900. This motion was not entered upon the docket as an independent proceeding, nor was any notice of it given to any of the defendants, except that the attorney for the defendant Clark was present at the short calendar session when the motion as reached for hearing, and informed the court that the defendant Clark was a nonresident, and had not been notified of the motion, and asked for a post

HALL, J. In March, 1904, the plaintiff, as administrator of the estate of Gilbert M. Clark, brought an action to the superior court of Middlesex county, under section 1019 of the General Statutes of 1902, against Sarah A. Clark, widow of Gilbert M. Clark, and the Society for Savings of Hartford, the allegations of which, and the facts found upon the trial as well as the decision rendered in March, 1908, upon the appeal to this court, appear in said case as reported in 80 Conn. 419, 68 Atl. 1001.

After the trial of said case in the superior

ment did not correct a variance between the recorded judgment and the judgment actually rendered, by adding to the former something included in the latter, but that it added to the judgment a sum not included in the judgment actually rendered. The facts in the present case are materially different. None of the parties to this suit appear to have had any controversy with the savings society. No money judgment against it is asked for by the complaint. The savings society does not appear to have answered, or even appeared, in the case. The contest was wholly between the plaintiff administrator and the defendant executor, and the decisive question between them was, Did the plaintiff, or did Sarah A. Clark, own the bank book No. 41,250, and the deposit which it represented, at the time of the death of Gilbert M. Clark, on the 27th of May, 1900? It was undisputed that the amount of the deposit at that date was $212.03, and that the owner of that deposit was entitled to all of the subsequently accrued interest.

ponement to enable him to communicate ground of that decision was that the amendwith Clark, and to prepare a defense if Clark so desired, and to file pleadings to the motion. The court refused said request because that day was the last short calendar day of that session of the court, and thereupon said attorney, assuming to speak in behalf of defendant Clark, and apparently upon the facts of record having sufficient authority to do so, was fully heard upon the question of the jurisdiction of the court to grant the motion, and the question whether the judgment in the form it was originally recorded correctly expressed the decision rendered. On the 4th of September, 1908, the court, Gager, J., granted the motion to correct the record of judgment, and on said date a corrected judgment file, stating upon its face that it was "as of 30th of March, 1907," was signed by Judge Gager. This corrected file differed from that of March 30, 1907, only in the last paragraph, which was made to read as follows: "Whereupon it is adjudged that the title and ownership in and to deposit book No. 41,250 in the Society of Savings of Hartford, and the amount represented thereon, on May 27, 1900, to wit, $212.03, and accrued interest thereon, is in the plaintiff administrator, and that the plaintiff recover of the defendant the Society for Savings the said deposit, to wit, two hundred and twelve dollars and three cents ($212.03), and accrued interest from May 27, 1900.

The defendant Clark complains that the court had no power to make such correction, and that it was irregularly made. The superior court possessed the power to make such correction at the time it was made. Over their recorded judgments courts possess the power "to correct and amend the record so that it shall truly show what the judicial action in fact was," and "mistakes, merely clerical, by which the judgment as recorded fails to agree with the judgment in fact rendered, may be corrected at a term subsequent to that in which the judgment was rendered, upon proper notice to all concerned." Goldreyer v. Cronan, 76 Conn. 113-115, 55 Atl. 594.

In his memorandum of decision the trial

Judge decided the issue of the ownership of the bank book, and the entire amount represented thereon in favor of the plaintiff. He said in his memorandum that judgment was rendered that the title and ownership in and to the deposit book No. 41,250, and the amount represented thereon on December 1, 1906, and accrued interest since that date, he added a misstatement of the amount due was in the plaintiff administrator, although

on that date. The statement in the memo

randum of decision that judgment was rendered "that the plaintiff recover the same of the plaintiff" was, in effect, a direction that the Society for Savings pay to the plaintiff the deposit so adjudicated to belong to him. The real mistake in the memorandum which furnishes such ground as there is for questioning its meaning is the misstatement of the date of the death of Gilbert M. Clark as December 1, 1906 (Mrs. Gilbert, the finding shows, died in 1906) instead of May 26, 1900, and of course the consequent misstatement of the amount represented on the The principal question in the case before deposit book on December 1, 1906, as $212.03. us, therefore, like that in Goldreyer v. Cro- By substituting, in the memorandum of denan, is whether the mistake sought to be cision, either "May 27, 1900," for "December corrected was a judicial error, in failing to 1, 1906," or omitting as surplusage the word include in the judgment actually rendered and figures "viz., $212.03," it will conform in the interest on $212.03 from May 27, 1900, effect to the judgment file as corrected. If to December 1, 1906, which the court had the language of the memorandum adjudging no power to correct at a subsequent term, the title and ownership of the bank book or was a clerical mistake in failing to make and deposit in the plaintiff had been includthe language of the judgment file conform ed in the judgment file of March 30, 1907, it to the decision actually rendered and an- would perhaps have sufficiently expressed nounced by the memorandum, which the the adjudication of title to the book and court might correct even at a later term. entire deposit in the plaintiff, notwithstandIn Goldreyer v. Cronan it was held that the ing the repetition in it of the mistake in the trial court improperly granted the plaintiff's date of the death of Gilbert M. Clark or in motion to correct a judgment of $300 ren- the amount represented by the bank book. dered at a previous term, by adding to it But in recording in the judgment file of

Appeal from Superior Court, New Haven did not appear in evidence that the plaintiff County: Silas A. Robinson, Judge.

the Robinsons were the owners of this onethird interest, and the plaintiff's occupation must be presumed to have been subservient to their rights. It clearly appears that the adverse occupation of the plaintiff when united with that of Mrs. Stevenson is at least four years short of the time required by statutory regulation to acquire title by adverse possession.

son received his deed from Mrs. Gorham, ¡ mistakable recognition and admission that ever resumed negotiations looking to a sale by the plaintiff to Robinson of the plaintiff's two-thirds interest. Since the death of Robinson his estate has paid taxes upon onethird of said premises. Up to the time that Mrs. Stevenson deeded this land to the plaintiff in 1890 she had the exclusive possession of it from the death of her husband in 1886, and treated it as her own. Up to the time Robinson obtained his deed from Mary Gorham in 1897 the plaintiff had the sole, actual possession of this land, and recognized no claim, interest, or right of any one else in or to it, except as hereinbefore stated. The plaintiff contended that his grantor, Martha Stevenson, obtained title to the real estate under the will of her husband, James Stevenson. This document which was introduced in evidence and made part of the record was executed jointly by James Stevenson and his wife Martha, purported to be a mutual will, and described the property to be affected thereby as follows: "All and sundry goods, gear, debts, sums of money, furniture and other effects and in general the whole personal property and goods in communion now belonging to us or either of us at the time of the death of the first deceasor with the whole interest, profits, and produce of the premises and the writings, vouchers and securities thereof." This was a bequest of personal property only, and did not pass to Mrs. Stevenson any title` to the real estate now in controversy.

The plaintiff claims that the possession of Martha Stevenson, his grantor, from 1887, joined with his possession from 1890, established his title by adverse possession. To this claim there are decisive objections. It appears that Mrs. Stevenson occupied the land from 1886 to 1890, when she sold it to the plaintiff. In 1897 the plaintiff discovered that he had no valid title, and attempted to purchase the Gorham interest, but failed in his effort. Under an arrangement with Robinson, this one-third interest was at that time purchased by him. Since that time the Robinson interest has been fully recognized and admitted by the plaintiff in dividing the rent. The possession of one who recognizes or admits title in another either by declaration or conduct is not adverse to the title of such other. 1 Green. Ev. (14th Ed.) § 109; Smith v. Martin, 17 Conn. 399, 400; Deming v. Carrington, 12 Conn. 5, 30 Am. Dec. 591; Rogers v. Moore, 10 Conn. 13. Occupation must, not only be hostile in its inception, but it must continue hostile, and at all times during the required period of 15 years challenge the right of the true owner in order to found title by adverse use upon it. Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202-220, 56 N. E. 540. After the purchase of the Gorham interest by Mr. Robinson, there was nothing in the conduct of the plaintiff showing a repudiation of this right. Upon

The plaintiff claims that Mary Gorham was so ousted of the possession of said land at the time of the execution and delivery of the deed made by her to Samuel Robinson that said deed was utterly void. Gen. St. 1902, § 4042, provide: "All conveyances and leases for any term, of any building, land or tenement, of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void." The provisions of this statute is only in affirmance of the common law which disabled a grantor ousted from transferring his title to another on the ground that such alienation tended to increase maintenance and litigation, and afforded means to powerful men to purchase rights of action and oppress others. Such deeds, therefore, are only so far void as they are opposed to the principles of the common law and prohibited by the affirmative provisions of the statutes. Goodman v. Newell, 13 Conn. 75–77, 33 Am. Dec. 378. Assuming it to be true that there was adverse occupation in the plaintiff at the time Mrs. Gorham deeded her interest to Robinson, and that no title was transferred as against the party then in possession, under the circumstances disclosed it cannot affect the result. A deed of lands adversely possessed is void only as to the person in possession, and those claiming in privity with him, as to the grantor, and his heirs it is good, by way of estoppel, and the grantee may sue for and recover possession in the name of the grantor, and then protect himself in his title under such deed. Livingstone v. Proseus, 2 Hill (N. Y.) 526; Williams v. Jackson, 5 Johns. (N. Y.) 489; Brinley v. Whiting, 5 Pick. (Mass.) 348. Mrs. Gorham and all parties interested are made parties to this action, and "the court may determine the ultimate rights of the parties on each side as against themselves, and grant to the defendant any affirmative relief to which he may be entitled." Practice Book 1908, p. 257, § 195. Ouster which will make a grantor's deed void is the same as that which, if continued for 15 years, would make a perfect title by adverse user in the occupant. Merwin v. Morris et al., 71 Conn. 555-574, 42 Atl. 855. The actions of the plaintiff at and before the execution and delivery of the deed to Robinson was a plain admission and acknowledgment of Mrs. Gorham's title, and his possession did not constitute an ouster, but should be regarded as in submission to that title.