Weinstein v. Ennis

Full title: Jane Proda Weinstein v. Charles J. Ennis et al

Court: Superior Court of Connecticut

Date published: Mar 28, 2017

FBTCV166060675S (Conn. Super. Ct. Mar. 28, 2017)

Opinion

FBTCV166060675S

03-28-2017

Jane Proda Weinstein v. Charles J. Ennis et al

Edward T. Krumeich, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Edward T. Krumeich, J.

Plaintiff Jane Proda Weinstein has moved for judgment in her action to quiet title to certain real property located at 70 Bailey Road, Fairfield, Connecticut (the " Property"). For the reasons stated below, the motion is granted.

This action was commenced pursuant to C.G.S. § 47-31 which provides, in pertinent part:

(a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.

Plaintiff acquired title to the Property by duly recorded warranty deed on January 24, 2007. The problem with plaintiff's chain of title occurred in the conveyance of the Property from Charles J. Ennis and Helen Freyler to Scott Salb and Mary Anne Salb on January 28, 1983. Helen Freyler executed the deed in her own name and also as attorney-in-fact for Charles J. Ennis pursuant to a power of attorney that was never recorded in the land records as required by C.G.S. § 47-10(a), which provides: " [w]hen a conveyance is executed by a power of attorney the power of attorney shall be recorded with the deed . . ." The failure to record the power of attorney cast a cloud over the conveyance of Mr. Ennis' one-half interest in the Property.¹

1 Defendants, Charles J. Ennis, Helen P. Freyler, their widow, widower, heirs, beneficiaries, representatives and creditors, have been defaulted for failure to appear.

" To establish title, the party claiming title must rely on the strength of his own title, and not on the weakness of the title of another." Mt. Maumee Partnership v. Peet, 40 Conn.App. 752, 757 n.3, 673 A.2d 127 (1996). Plaintiff attempted to show title by adverse possession but she failed to present evidence that she and her predecessors in interest satisfied the elements of adverse possession. See Har v. Boreiko, 118 Conn.App. 787, 798-99, 986 A.2d 1072 (2010).² Plaintiff only possessed the property for ten years and no evidence was presented that would tack on an additional five years adverse possession by her predecessors in interest. Id. ³

2 In Har the Appellate Court described the function of a quiet title action: " 'An action to quiet title is one quasi in rem, and it lies against those who, at the time it is instituted, are the present claimants to the land under the instrument which creates the cloud.' . . . When a party seeks to quiet title pursuant to § 47-31, the 'court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title . . . The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of adverse possession of the other." 118 Conn.App. at 794 (citations omitted). " Under § 47-31, the claim for relief calls 'for a full determination of the rights of the parties in the land.' . . . To prevail, the plaintiff must do so on the strength of her own title, not on the weakness of the defendants' . . . and by the preponderance of the evidence." Id. at 795.

3 " '[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner . . . A finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession . . ." Har, 118 Conn.App. at 798-99 (citations omitted).

Fortunately, on April 25, 1983, the State Assembly passed Special Act 83-7 that validated conveyances " executed by an attorney-in-fact pursuant to a power of attorney which has not been recorded on the land records . . ." ⁴ Validating acts are designed to cure defects in title caused by mistakes in conveyancing, scrivener's errors or other matters specifically addressed in the acts. See generally, Lupoli v. Lupoli, 38 Conn.App. 639, 642, 662 A.2d 809 (1995); Grabarz v. Waleski, 5 Conn.App. 435, 499 A.2d 433 (1985).

4 S.A. 83-7 provides: " Sec. 16. POWERS OF ATTORNEY. All recorded deeds, mortgages, leases or other instruments heretofore made for the conveyance of real property in this state or any interest therein and executed by an attorney-in-fact pursuant to a power of attorney which deed was signed, sealed and acknowledged by the attorney-in-fact in his individual capacity or fails to recite that the power of attorney was recorded, are validated. Any such instrument executed by an attorney-in-fact pursuant to a power of attorney which has not been recorded on the land records is validated ." (Emphasis added.)

Jane Proda Weinstein is the holder of all the fee title interest in the Property, defendants have no interest therein, and judgment shall enter quieting and settling title in her name.