Connecticut western news., 1920-07-22
JUDGES DECISION IN
 WHITFORD-LEE CASE
Plaintiffs Action to De- termine Extent of
 Relief

rendered his dec1Slon Tn the Wnlt- ford-Lee case and finds that the plaintiff has no case but continues the action until the fall term of the superior court, to allow the plain tiff to enclose his lot and stop the illegal public use which has been made of the passway in which event he may grant the plaintiff some Of the relief he asks for.
 The following is an extract from the Judges opinion:
 On Feb. 26, 1916, this, then was the situation: the spassway was being used to the fullest extent that is, not merely by those domiciled or having business upon the plaintiff s premises, but also by those dwelling or having business upon other prop critics beyond, and by such of the general public as desired to cross the plaintiffs land in going to or from Main Street by the passway and, by plaintiffs conduct with ref erence to that use, the plaintiff had placed himself in a position where he could not legally assert any rights which he might have in the passway. On that day, the plaintiff called at the defendants house and told her and her husband in substance that he was going to sell his property and that he had an offer from Ives and Pierce, the coal dealers who already had coal sheds on the property ad- joining the plaintiffs on the south 1; that, if they bought they would use the property for their coal business and would cart the coal over the passway, with the result that the Lees would be put to serious dis comfort and inconvenience; and that he thought he would therefore give them the first chance to buy. They told him that they would con- sider his suggestion. They at once talked the matter over with a neighbor, skilled in the law, and then placed it in an attorneys hands, to take such action as he deemed proper. Thereafter, while they were apprized from time to time as to the steps he took and approved of them, they left the protection of their in terests and the proper course to take entirely in his charge.
 The attorney looked up the title to the property and then prepared and had executed a deed from the administrative of the estate of William Shields granting to the de- fendant such right as William Shields or his estate had in the pass way; and similar deed from Abner G. Lewis and John P. and Olive Cudney, releasing and quitclaiming all right they had in it; and he caused these deeds to be recorded. The deed from the administratrix did not purport to refer to any or der of probate authorizing it. nor was there any order ever made, eX- cept that referred to before as the basis of the deed of the administra- trix to MT. and Mrs. Lewis; the only consideration paid upon the delivery of the deed was $1.O0 and no return to the Probate Court was ever made. The signatures of MT. Lewis and Mrs. Cudney to the other deed wel e witnessed only by the attorney, that . of MT. Cudney, by him and another man; this was indicated on the ori- ginal: deed by a line drawn from the signature of the latter to the name 'John P Cudney"; btu both witness es signed in the usual place and the record of the deed omits the line making it appear as though all sig natures were duly witnessed These de e d S the plaintiff attacks on various grounds among them on the ground that they were secured by misrepresentations on the part of the attorney; if it were material, I should find this last allegation untrue; but do not think that any of the objections made are material. These deeds were ineffective for the reson that the grantors had nothing to convey &first, because all the rights they ever had in the passway had already vested in the plaintiff, and, second ly, because, if that were not true any rights in the passway could not exist apart from the lands to which they were appurtenant. Almost i'm mediately thereafter Mir. Lewis anc MT. and Mrs. Cudney signed anc caused to be served on the defendant at the instance of the plaintiff, { paper in which they allege that the deed signed by them was secured by misrepresentation and under mis understanding, was without con Sideration, and was never delivered or intended to be delivered, anc forbidding the defendant to use il or to place it upon record. The deed had, however, already been re corded; and neither party caused this disclaimer to be spread upor the records.
 The attorney also prepared anC had served and recorded notice! signed by the defendant, addressed to the plaintiff and the owners anC
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