Opinion
No. CV 03-0089714S
May 19, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case raises the question of whether a warranty deed not recorded on the land records until forty-nine years after the deed was executed remains effective against heirs of the grantor. The answer to this question lies in the venerable statute, now § 47-10 of the General Statutes, which since Connecticut's days as a crown colony has provided that an unrecorded conveyance is fully binding on both the grantor and her heirs. Grandsons of the grantor, Marjorie Sullivan, (and of the grantee, Conrad H. Sullivan) have brought this action to quiet title against persons claiming an interest in the land through the grantee. The plaintiffs claim that the passage of forty-nine years before recordation rendered the warranty deed void and ineffective and that, as the grantor's sole living heirs, they now have lawful title to that property by virtue of intestate succession from her. They also claim to be Conrad Sullivan's sole living heirs, with rights to any interest in that property that he inherited from Marjorie Sullivan. The defendants in this action are the now-deceased grantee of the property, the individual appointed by Connecticut and New York courts as the temporary administrator and preliminary executor of the grantee's estate, and various charitable and religious organizations designated in a contested will as devisees of the parcel claimed by the plaintiffs. The administrator/executor, Robert W. Bisceglia, has now moved for summary judgment on the plaintiff's complaint and on the counterclaims he filed on behalf of the estate. For the reasons stated below, the plaintiffs' complaint is dismissed, and the defendant's motion for summary judgment on the counterclaim is granted in part and denied in part.
Section 47-10 provides in relevant part as follows: "No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies."
References to this statute or its predecessors can be found in such ancient cases as M'Donald v. Leach, Kirby 72, 73 (1786), Willet v. Overton, 2 Root 338, 341 (1796), and French v. Gray, 2 Conn. 92, 98 (1816). In Willet v. Overton, the court noted that a predecessor of this statute, providing that "no grant or deed . . . shall be accounted good and effectual . . . against any other person . . . but the grantor or grantors and their heirs only; unless . . . recorded," became effective in March 1709. In French v. Gray, supra, 2 Conn. 102, the opinion of Judge Trumbull stated that "[t]his act was passed in the year 1708 and its origin may be traced to 1650." See "An Act concerning Town Clerks Office and Duty," Sec. 9, Acts and Laws of the State of Conn., 1805. The Connecticut colony's statute paralleled that enacted in 1640 by the General Court of the Massachusetts Bay Colony, which provided, in relevant part that "no mortgage, bargaine, sale, or graunt hereafter to be made of any houses, lands, rents, or other hereditamits, shall bee of force against any other person except the grauntor and his heirs, unless the same be recorded . . ." 1 Records of the Governor and Company of the Massachusetts Bay in New England 306 (N. Shurtleff ed. 1853), cited in 14 Powell on Real Property, § 82.01[1], p. 82-7 (Michael Allan Wolf ed., Matthew Bender), Rev. to 2003.
The 1708 statute was amended by the Revision of 1875 to the General Statutes as follows: "No conveyance shall be effectual to hold lands against any other person but the grantor and his heirs, unless recorded on the records of the town in which the lands lie." (Chapter 6, Lands, Part I, Section 11.) That language remained unchanged through the statutory revisions of 1902 (Section 4036) and 1918 (Section 5091). The Revision of 1930 to the General Statutes adopted the present language (Section 5010).
I. STANDARD OF REVIEW
A court will grant summary judgment if, viewing the evidence in the light most favorably to the non-moving party; Elliot v. Waterbury, 245 Conn. 385, 391, 715 A.2d 27 (1998); there is no genuine issue of material fact and the moving party would be entitled to a directed verdict on those facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982). A material fact is one that will make a difference in the result of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Gupta v. New Britain General Hospital, 239 Conn. 574, 582, 687 A.2d 111 (1996). Summary judgment shall be rendered forthwith "if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49.
II. FACTS
Certain facts in the present case are not in dispute. On December 22, 1934, Conrad and Marjorie Sullivan, husband and wife, acquired title, as tenants in common, to the parcel in question in Morris, Connecticut. On February 5, 1935, Conrad Sullivan conveyed his interest in the parcel to his wife by warranty deed; the next day she conveyed back to him, by warranty deed, her entire interest in the parcel. On July 18, 1935, the February 5 warranty deed from Conrad Sullivan to Marjorie Sullivan was recorded on the land records. In 1985, forty-nine years later and six weeks before Marjorie Sullivan died, the February 6, 1935, deed conveying her interest to her husband was recorded on the Morris land records. No deed of conveyance or any other interest in or claim to that property was filed on those land records in the period between the 1935 recordation of Conrad Sullivan's warranty deed to Marjorie Sullivan and the 1985 recordation of her deed to him. Marjorie Sullivan's will designated her husband as the executor of and sole heir to her entire estate, residue and remainder. Documents he filed in Litchfield Probate Court in connection with his role as her executor did not list the parcel in question as part of her estate; nor were estate taxes paid on the parcel.
Conrad Sullivan died on October 17, 2001. A document purporting to be his will and offered for probate in Westchester County Surrogate's Court in the State of New York designates various religious and charitable organizations, also named defendants in this action, as the devisees of the land in dispute in the present case. The New York court has appointed Robert W. Bisceglia as preliminary executor of his estate, and the Probate Court of Litchfield County has appointed Bisceglia as temporary administrator of the estate with regard to real property in this state. With approval of the New York Surrogate's Court and Connecticut Probate Court, Bisceglia has retained a real estate agent to sell the land in question and entered into a contract to sell the parcel.
III. DISCUSSION
The gravamen of the plaintiffs' claim is that the deed dated February 6, 1935, from Marjorie to Conrad Sullivan was legally ineffective to convey title since it was not recorded on the local land records until more than forty years after the date of execution. Their complaint thus alleges that:
20. Marjorie Sullivan became the sole and exclusive owner of this real property . . . by the making of the deed on February 5, 1935 and recording of said deed on July 18, 1935 . . .
22. Any claims against Marjorie Sullivan's root of title by any document made prior to July 18, 1935 must have been filed by July 18, 1975, or within 40 years of Marjorie Sullivan's root of title . . .
29. The deed dated February 6, 1935 from Marjorie Sullivan to Conrad H. Sullivan and filed on August 31, 1984 was invalid to convey title to Conrad H. Sullivan since it was not filed within the 40-year statutory period . . .
36. Connecticut General Statutes Section 47-33b through 47-33j prevents and extinguishes a claim to this real property . . . after 40 years by a document dated prior to July 18, 1935 . . .
41. The deed dated February 6, 1935 from Marjorie Sullivan to Conrad H. Sullivan and filed in the Town Clerk's Office in the Town of Morris, Connecticut on August 31, 1984, must be declared to be of no force and effect because it was extinguished by virtue of the Statutes of the State of Connecticut.
(Pl.s' Compl., ¶¶ 20, 22, 29, 36, and 41.)
From this premise, the plaintiffs craft a legal argument that the property in question belonged to Marjorie Sullivan on the date of her death (based on their claim that waiting forty-nine years to record the conveyance from her to Conrad Sullivan extinguished that deed and rendered it "of no force and effect"). The final paragraph of the complaint then alleges that the plaintiffs, as "the sole living statutory heirs-at-law of Marjorie Sullivan . . . must be declared the current owners of this real property." As relief, they seek judgment that they are the lawful owners of the real property and an order preventing its further marketing or sale.
In their memorandum opposing summary judgment, plaintiffs assert legal significance in the fact that Conrad Sullivan, as executor of Marjorie Sullivan's estate, did not list this parcel as part of her estate passed through probate in New York and Connecticut. They maintain that Marjorie Sullivan owned the parcel on the day of her death and that Conrad Sullivan's failure to include the land in the probated estate means that title to the land did not pass to him under her will, despite the fact that the will named him as her sole devisee. Their claim of intestate succession through Marjorie Sullivan is as follows: if the property remained in Marjorie Sullivan's name and never passed to Conrad Sullivan, it should now be deemed, under the laws of intestacy, to pass to them, as her sole living heirs.
In the plaintiffs' memorandum of law, they present two alternative scenarios by virtue of which they claim that the property might instead pass to them under the laws of intestate succession through Conrad Sullivan:
It is too late, they maintain, to open Marjorie Sullivan's estate and pass the property to Conrad Sullivan by testamentary disposition since he is now dead. "Because Conrad did not own it at the time of his death, it will pass by intestate succession to his heirs-at law," whom the plaintiffs claim to be themselves (Pl.s' Mem. of Law in Opposition to Motion for Summary Judgment, at p. 11); or
Even if title divested to Conrad Sullivan, because either of the July 1935 deed or through inheritance by will or intestacy from Marjorie Sullivan, they claim title to the land as his sole heirs through intestacy, because, they assert, the contested will is invalid.
In response to this elaborate legal edifice, defendant Bisceglia makes, in effect, one simple argument: that the 1935 warranty deed from Marjorie Sullivan was fully legally effective to convey title of the property to Conrad Sullivan, and that failure to record that conveyance for forty-nine years in no way invalidates that conveyance as to these two plaintiffs, who assert rights as Marjorie Sullivan's heirs. Thus, he claims, the court should grant summary judgment to defendant on the complaint and on count one of defendant's counterclaim. His motion for summary judgment on the complaint also raises three other claims: that the court lacks subject matter jurisdiction over the action because plaintiffs lack standing to assert the claims they raise; that the statute of limitations bars any claims of intestate succession through Marjorie Sullivan; and that Marjorie Sullivan's will precludes any claim of intestate succession from her. Count two of the counterclaim also asserts that if the late recordation somehow voided the will to Conrad Sullivan, he nonetheless acquired title.
A. Plaintiffs' Standing and Subject Matter Jurisdiction over Complaint
This court must address the issues of standing and subject matter jurisdiction raised by the defendant before considering any other issues. "Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction." Steeneek v. University of Bridgeport, 235 Conn. 572, 580, 668 A.2d 688 (1995). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Salmon v. Dept. of Public Health Addiction Services, 58 Conn. App. 642, 649, 754 A.2d 828, cert. granted on other grounds, 254 Conn. 926, 761 A.2d 754 (2000).
Although "the proper way to challenge subject matter jurisdiction is by a motion to dismiss, rather than a motion for summary judgment," Booth v. Flanagan, 19 Conn. App. 413, 415, 562 A.2d 592 (1989), the court must nonetheless consider the issues of standing and subject matter jurisdiction even when raised by the procedural vehicle of a motion for summary judgment. In accord with the practice of other courts, this court will treat the defendant's claims as a motion to dismiss. See Kogut v. Church Homes, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 00-0436717S (November 5, 2002, Robinson, J.); Waldo v. Ohno, Docket No. CV 01-0451985S, Superior Court, judicial district of New Haven at New Haven (September 6, 2002, Cellotto, J.); Moss v. Commissioner of Correction, Superior Court, judicial district of Waterbury, Docket No. CV 97-0140789S (September 17, 2001, Holzberg, J.). "[W]henever a lack of jurisdiction to entertain a particular proceeding comes to a court's notice, the court can dismiss the proceeding upon its own motion." (Internal quotation marks omitted.) Marine Midland Bank v. Ahern, 51 Conn. App. 790, 797, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000).
The concept of standing serves to determine which cases courts may hear:
Standing is . . . a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.
(Internal quotation marks omitted.) Connecticut Associated Builders Contractors v. Hartford, 251 Conn. 169, 178, 740 A.2d 813 (1999).
Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. Accordingly, our standing jurisprudence consistently has embodied the notion that there must be a colorable claim of a direct injury to the party.
(Citation omitted; internal quotation marks omitted.) In re Jessica M., 71 Conn. App. 417, 424, 802 A.2d 197 (2002).
Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.
(Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).
In assessing the plaintiffs' standing to bring this action, therefore, and whether the court has subject matter jurisdiction, the court must determine whether they have "some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." State v. Decaro, 252 Conn. 229, 253, 745 A.2d 800 (2000). Do they show "a specific, personal and legal interest" in the subject matter of the challenged action? AvalonBay Communities, Inc. v. Orange, supra, 256 Conn. 568. The one-count complaint specifies only one legal theory of recovery, by way of intestate succession through Marjorie Sullivan. The plaintiffs assert that they are the sole living persons lawfully entitled to succeed via intestacy through Marjorie Sullivan; that, by virtue of the specific factual circumstances here, her will was legally ineffective to convey the property to Conrad Sullivan; and that the property therefore passes by way of intestacy to them. Any standing they have, then, rests squarely on their legal theory that the delay of forty-nine years in recording the 1935 deed from Marjorie Sullivan to Conrad Sullivan extinguished his ownership of the property. Otherwise, the property is part of Conrad Sullivan's estate, and no legal interest in or claim to the property flows to them through Marjorie Sullivan.
The plaintiffs' legal theory presumes that recording title on the land records is a necessary component of conveying title. It has long been the law in this state that "all interests in land shall, as far as practicable, appear on the land records so that they may be easily and accurately traced . . ." Hawley v. McCabe, 117 Conn. 558, 564, 169 A. 192 (1933).
The maintenance of the effectiveness of our registry system requires that one who relies in good faith upon a record title apparently complete shall be protected against any claimed interests not of record, of which he has no notice. In the absence of actual notice of the existence of an easement or of physical facts which would put him upon inquiry, one purchasing property may rely upon the land records to disclose the existence of such a charge upon the property.
(Citation omitted.) Id. at 564-65. The Marketable Title Act, General Statutes § 47-33b et seq., simplified the process of using land records to identify interests in property by limiting the period of time that title researchers must examine. Mizla v. Depalo, 183 Conn. 59, 438 A.2d 820 (1981) ("[t]he ultimate purpose of all the Marketable Title Acts is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction") (internal quotation marks omitted). Id. at 64, n. 9. Under current law, a person with "an unbroken chain of title to any interest in land for forty years or more" has "marketable record title to that interest." General Statutes § 47-33c. "Marketable record title" overrides any prior interests in the land except those expressly enumerated by statute. General Statutes §§ 46-33d and 47-33e. It is thus true, as the plaintiffs claim, that failure to record an interest in real property can work to extinguish unrecorded interests on land arising prior to the applicable time period.
Section 47-33d provides as follows:
Such marketable record title is subject to: (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed; provided a general reference in the muniments, or any of them, to easements, use restrictions or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest; (2) all interests preserved by the recording of proper notice or by possession by the same owner continuously for a period of forty years or more, in accordance with section 47-33f; (3) the rights of any person arising from a period of adverse possession or use, which was in whole or in part subsequent to the effective date of the root of title; (4) any interest arising out of a title transaction which has been recorded subsequent to the effective date of the root of title from which the unbroken chain of title of record is started; provided such recording shall not revive or give validity to any interest which has been extinguished prior to the time of the recording by the operation of section 47-33e; (5) the exceptions stated in section 47-33h as to rights of reversioners in leases, as to apparent easements and interests in the nature of easements, and as to interests of the United States, this state and political subdivisions thereof, public service companies and natural gas companies.
Section 47-33e provides as follows:
Subject to the matters stated in section 47-33d, such marketable record title shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title.
All such interests, claims or charges, however denominated, whether legal or equitable, present or future, whether those interests, claims or charges are asserted by a person sui juris or under a disability, whether that person is within or without the state, whether that person is natural or corporate, or is private or governmental, are hereby declared to be null and void.
These statutory provisions do not help the defendants here, however, for two reasons. First, the Marketable Title Act does not free either the grantor, or the grantor's heirs, of unrecorded interests created by the grantor. Second, the plaintiffs here are not bona fide innocent third-party grantees, who are the act's primary beneficiaries.
The express language of General Statutes § 47-10 provides that "[n]o conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies." As our Supreme Court recently held,
The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule.
In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing so, we attempt to determine its range of plausible meanings and, if possible, narrow that range to those that appear most plausible. We do not, however, end with the language. We recognize, further, that the purpose or purposes of the legislation, and the context of the language, broadly understood, are directly relevant to the meaning of the language of the statute.
This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.
(Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003).
There can be no doubt here that the language of the statute is plain and clear. Although that language has changed somewhat over the years, each such iteration has provided that unrecorded conveyances remain effective against the grantor and the grantor's heirs. Though we may not have legislative history available to clarify the intent of the colonial framers the purposes of our recording statutes are well-known — "to alert prospective purchasers to the status of the property and to provide security in land transactions." Cabinet Realty, Inc. v. Planning Zoning Commission, 17 Conn. App. 344, 350-51, 552 A.2d 1218 (1989). Under Connecticut law, grantees take their interest in real property subject to claims on that property of which they have notice. Such notice may be actual, constructive, or record notice. Land records are a form of constructive notice. Second National Bank of New Haven v. Dyer, 121 Conn. 263, 270, 184 A. 386 (1936).
This court concurs, moreover, with the observation of Justice Trumbull in French v. Day, supra, 2 Conn. 102, that "[w]e always tread on unsafe ground, when we undertake to conjecture that the intention of the legislature, in passing an ancient statute, must have been different from its plain and literal meaning, and are very liable to mistakes, in deciding what was the old law, the mischief, and the remedy, unless when we are aided by a contemporaneous, or at least, an early construction, put upon it by the courts."
An example of actual notice is the case of New York, N.H. H.R. Co. v. Russell, 83 Conn. 581, 78 A. 324 (1910), in which an electric company had erected power lines on certain property pursuant to an unrecorded agreement with the parcel's owner. The court then prevented Russel, a later owner of the property from interfering with the power lines because the court held her to be aware of those lines when she acquired title. "One who buys and with knowledge that his grantor has agreed to convey a right of way over it to a third party . . . may be compelled to abide by such agreement . . ." (Citations omitted.) Id. at 594-95.
An example of constructive notice that a court held binding on a property owner is Alderman v. New Haven, 81 Conn. 137, 70 A. 626 (1908). In that case, owners of a parcel had no actual knowledge of unrecorded agreement between the city and a prior owner of the land to permit sewer lines on the property. The court denied relief to the owners when they brought an action to require removal of the sewers as an unlawful invasion of their property because "[t]he possession and use were so open, visible and apparent, and of such a nature, that in the absence of actual knowledge thereof, and of their adverse character on the part of the successive fee owners, such knowledge will be imputed to them." Id. at 141.
Although the Marketable Title Act is silent as to the effect of actual or constructive notice, dicta in cases since the act's enactment suggest that either is sufficient to affect a grantee's interest in land. See, e.g., Marshall v. Soffer, 58 Conn. App. 737, 742, 756 A.2d 284 (2000):
The 1967 map was not referenced in any deed, and no deed description after that date in the chain of tile of either the plaintiffs or the defendant was amended to reflect any change in the boundaries of land conveyed. We do not agree with the defendant that a map that is not indexed as being in the chain of title of either the plaintiffs or the defendant should alter the plaintiffs' deeded description without actual or constructive notice of the map or without an agreement recorded in the land records.
An example where a recorded interest on land records bound subsequent owners who had no actual or other constructive notice of a claim to their property is Richmond v. Malkin, 6 Conn. Sup. 97 (1938). In that case, one Malkin gave a mortgage on September 9, 1936, on his property to Buchta, who did not record the mortgage until almost a year later, on August 4, 1937. In the interim, Malkin conveyed all interest in his property on May 10, 1937, to Sutherland "free and clear of all encumbrances except zoning regulations and `mortgages as appear of record.'" Id. at 97. There was "no indication in the evidence that Sutherland had actual or constructive notice of the Buchta mortgage." Id. On July 27, 1937, while Buchta's mortgage was still unrecorded, Sutherland gave a mortgage on the premises to Barnard, which was not recorded until August 9, 1937, after the Buchta mortgage had been recorded. The court thus held that:
In view of the circumstance that Sutherland was without knowledge, actual or constructive, of Buchta's mortgage, and because Buchta failed to record her mortgage within a reasonable time following its delivery to her . . . Sutherland acquired a title to the property free from the lien of the Buchta mortgage, record notice, in the absence.
Id. The fact that Buchta actually recorded his mortgage before Barnard recorded his was of no consequence because, when Barnard acquired his interest in the land, the Buchta mortgage had not yet been recorded.
The grantor of a deed obviously has actual notice of the deed, and a grantee's failure to record that deed works no harm against the grantor, even in view of the purposes of the recording statutes. From colonial days, our legislatures have also deemed that heirs of the grantor, who take only what the grantor had or "stand in the shoes" of the grantor, also have constructive, if not actual, notice of such a conveyance. Such a construction of the statute is entirely consistent with the purposes of our recording laws, which are intended to protect bona fide third parties from the effects of conveyances of which they have no notice. The premise of recording statutes is that of basic equity. Without such laws, a person who fails to record an interest in land misleads others about the land, about the grantor's assets and about the grantee's assets. "The basis of the protection so afforded is an equitable estoppel which arises out of the fact that the person who has failed to record the instrument under which he claims has thereby misled creditors into the belief that title is in the person who appears upon the record to own the property." Second National Bank of New Haven v. Dyer, 121 Conn. 263, 271, 184 A. 386 (1936). As against innocent third-party purchasers, the recording statute offers no protection to an unrecorded interest in land. But equity and statute bind the grantor and heirs.
Although the plaintiffs rely heavily on various provisions of the Marketable Title Act to support their claim, that act does not nullify § 47-10, but instead expressly provides that it shall not "be construed . . . to affect the operation of any statute governing the effect of the recording or the failure to record any instrument affecting land." General Statutes § 47-33i. The plaintiffs' complaint asserts standing only through legal interests that they claim to flow to them from Marjorie Sullivan as her heirs. Yet, under § 47-10, Marjorie Sullivan's conveyance to Conrad Sullivan is effectual to hold the land against any of her heirs, including plaintiffs, despite his failure to record the deed for forty-nine years. It has long been Connecticut law that delivery and acceptance of a deed are sufficient to convey property from one person to another. As between the grantor and grantee, late recordation does not affect the validity of the conveyance.
We cannot agree with the defendant in its position that . . . a deed purposely withheld from record for an unreasonable time, with the assent of both parties, takes effect only when it is recorded. The deed, when delivered and accepted, is good between the parties, irrespective of the date of its record, and when the title of the grantee is in issue, and the rights of no one are prejudiced by the failure to record, that title is to be determined for all purposes by the fact of title, and not by the record evidence of it.
(Citations omitted.) Wiley v. London Lancashire Fire Ins. Co., 89 Conn. 35, 44-45, 92 A. 678 (1914).
The concept of marketable record title and the statutory rule of § 47-33c that a chain of title for not less than forty years creates marketable record title are legal devices for determining priorities between competing claims to property. Under the Marketable Title Act, Marjorie Sullivan held marketable record title to the property until the 1935 deed from Marjorie Sullivan conveying the property to Conrad Sullivan was recorded in August 1984. If, while holding marketable record title, she had signed a writing conveying title to a non-heir third person who was unaware, actually or constructively, of Conrad Sullivan's interest in the land, that grantee would have had priority in any contest over the land with Conrad Sullivan, whose interest was not yet recorded. Such a hypothetical event, however, never occurred. Only Conrad Sullivan has ever had any claim to the land arising from a conveyance by Marjorie Sullivan, and no one has made any claim of easement or prescriptive right acquired through her. In August 1984, he recorded her deed to him. As of that date, he held marketable record title to the property giving him preference not only over Marjorie Sullivan and her heirs, but, in Blackstone's words, also "a good right . . . against the whole world besides." 2 W. Blackstone, Commentaries on the Law of England (cited in French v. Gray, supra, 2 Conn. 99, as to the effect of recording title: "For whoever should sue him in an action of disseisin [ejectment] must fail, for want of proving a title.")
The court thus concludes that neither Marjorie Sullivan nor her estate had any legal interest in or claim to the property after Conrad Sullivan recorded the warranty deed from her in August 1984. The plaintiffs have no legal interest in or claim to the property in their capacity as her heirs, the only basis they allege for recovery in their complaint. They have no legal or equitable right, title or interest in the subject matter of the controversy. Thus, they lack standing to assert the claims they raise in the complaint, and the court lacks subject matter jurisdiction to hear those claims.
The complaint and memorandum of law opposing summary judgment also allege facts, in which, conjunction with facts pleaded by defendants in their counterclaim raise claims to the property via intestacy through Conrad Sullivan. If the disputed will is invalid, then they may, as Conrad Sullivan's heirs, have rights to the land if he did. Ordinarily, courts look only to the facts alleged in a complaint to determine a party's standing, and the court's subject matter jurisdiction to hear the party's claim. Even, however, were the court, in view of "the solicitude with which the rights of pro se litigants are to be treated"; Royce v. Westport, 183 Conn. 177, 181, 439 A.2d 298 (1981); to consider factual allegations outside their complaint, such claims do not establish any standing to raise those claims here now. The Superior Court does not have original subject matter jurisdiction to hear will contests or conflicting claims of heirs to property. See In re Joshua S., 260 Conn. 182, 216, 796 A.2d 1141 (2002).
Although the other defendants did not join Bisceglia in the motion for summary judgment, the court, lacking subject matter jurisdiction over plaintiffs' complaint, must dismiss the complaint as to all defendants.
B. Defendant's Counterclaims
Without subject matter jurisdiction over plaintiffs' complaint, the court cannot rule on the other claims of law upon which the defendant relied to support his motion for summary judgment on the complaint. The court retains jurisdiction, however, to consider the defendant's counterclaims seeking an order quieting title pursuant to General Statutes § 47-31 and so must rule on defendant's motion for summary judgment on the counterclaim. The two-count counterclaim pleads in the alternative: that Conrad Sullivan acquired title to the property by the warranty deed issued to him by his wife, Marjorie, on February 6, 1935, and recorded on the land records forty-nine years later (count one), or that he acquired title pursuant to the will of Marjorie Sullivan, which devised to him all her estate after payment of debts, funeral expenses, and administrative costs (count two). For reasons fully discussed above, the court concludes that Conrad Sullivan acquired ownership of the property when Marjorie Sullivan issued the warranty deed to him. The act of recording that deed forty-nine years later, before her death, gave him full marketable record title as well. Accordingly, the motion for summary judgment should be granted in favor of defendant Bisceglia on the count one of the counterclaim, and denied on the count two.
IV. ORDERS
The plaintiffs lacking standing to raise the claims asserted in their complaint, and the court without subject matter jurisdiction to hear their claims, the plaintiffs' complaint is DISMISSED.
Defendant's motion for summary judgment is GRANTED on the first count of the counterclaim and DENIED on the second count.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT