Arcari v. Strouch

• Decision Date: 19 January 1932
• Citation: 158 A. 222,114 Conn. 200
• Court: Connecticut Supreme Court
• Parties: ARCARI v. STROUCH et al.

158 A. 222

114 Conn. 200

ARCARI v. STROUCH et al.

Supreme Court of Errors of Connecticut.

January 19, 1932

Appeal from Superior Court, Hartford County; Alfred E. Baldwin Judge.

Action by Isabelle Arcari against Frank Strouch, Fannie Meyers, and others to recover upon an assumption clause in a mortgage note. The case was tried to the court, and from a judgment for plaintiff, defendant Fannie Meyers appeals.

No error.

Milton Nahum and Julius Apter, both of Hartford, for appellant.

William F. Vail, of Hartford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

AVERY J.

This action was brought under Gen. Stat. § 5489, which permits a mortgagee to maintain an action in his own name against a grantee of the mortgaged premises who, in his deed assumes and agrees to pay the mortgage encumbrance. Colchester Savings Bank v. Brown, 75 Conn. 69, 71, 52 A. 316. The plaintiff, Isabelle Arcari, sued the defendant Fannie Meyers and six others to recover a balance overdue upon a note secured by a third mortgage upon real estate in Hartford, which note the plaintiff alleged the defendants assumed and agreed to pay in various conveyances of the property to them. All the defendants, except Fannie Meyers, defaulted. She appeared and answered the complaint, denying that she had assumed and agreed to pay the mortgage and the indebtedness thereby secured.

From the finding, it appears that November 30, 1923, Morris Aaronson executed his promissory note for the sum of $7,296, to the order of Barney Sohn, secured by a third mortgage on real estate then owned by Aaronson, Nos. 1344 to 1348 Albany avenue, Hartford. On that date, the premises were subject to a first mortgage for $20,000, a second mortgage for $12,500, which latter was dated November 27, 1923, and payable $500 semiannually. The note secured by the third mortgage is now owned by the plaintiff, it having been transferred to her by the indorsements of Sohn and others. The mortgage securing this note is also owned by the plaintiff, having been assigned to her by her husband.

By deed, dated April 30, 1924, Aaronson conveyed the property to Sol L. Peizer, an attorney at law, and brother of the defendant Fannie Meyers. In this deed, Peizer assumed and agreed to pay the mortgages upon the property specifically set forth, including the one owned by the plaintiff. On the same date, Peizer conveyed the property by a quitclaim deed, properly witnessed and acknowledged, to his sister, the defendant Fannie Meyers. The deed contained the following assumption clause: " Said premises being subject to mortgages aggregating $38,800 which the grantee herein assumes and agrees to pay." The deed from Peizer was not put upon record at that time, but was retained by him and put upon record some ten months later, when the defendant Meyers sold the property.

The court has found that this assumption clause was inserted in the deed from Peizer to the defendant Fannie Meyers with full authority from her and with her knowledge. The principal contention of the defendant on this appeal is that she had no knowledge of the assumption clause in the deed to her and that it was inserted without her authority; and, for the purpose of attacking the conclusion of the trial court upon this point, she asks addition to the finding of some forty-eight paragraphs of her draft finding and the elimination from the finding of three full paragraphs and parts of four others.

From the subordinate facts found by the court, it appears that in 1924, and prior thereto. Peizer, defendant's brother, and a man of considerable experience in real estate transactions was practicing law in Hartford. He acted as attorney and adviser to his sister in various matters, and she at all times sought his advice and guidance in matters concerning real estate. He discussed with his sister the advisability of her purchasing this property, and suggested that she should purchase it with some cash which her husband had left her in order that the income from this property, together with the property adjoining which was owned by her, might be sufficient to furnish her with considerable additional income for her support. He advised her to buy this property and she accepted and followed his advice. The purchase price was $45.000. She furnished $6,000 in cash for the purchase and, immediately upon execution of the deed, went into possession of the premises, and acted as owner until she sold February 28, 1925. During the ten months' period, while the record title stood in Peizer's name, she collected the rents, amounting to about $340 a month; paid the installment of principal and interest which became due November 3, 1924 on plaintiff's mortgage as well as the installment of principal and interest on the two prior mortgages; and also paid the taxes, charges of upkeep, etc., on the property. Shortly before February 28 1925, Peizer obtained two purchasers for the property but they refused to buy unless they could also buy the premises adjoining owned by the defendant. February 28, 1925, she sold and conveyed both properties to these purchasers. Peizer represented her in this transaction. He prepared the deed from her to the purchasers in which the incumbrances on each of the properties were set forth with an assumption agreement, wherein she directed that her grantees assume and pay the incumbrances specifying them including the plaintiff's mortgage. This deed, which was executed by the defendant, recited the fact that the premises transferred were the same conveyed by Peizer to her April 30, 1924, and the description was taken from the deed from Peizer to her. It is clear upon the evidence that the defendant intrusted the entire matter of the purchase of the premises and the terms upon which they should be bought to the judgment and discretion of Peizer without instructions or limitation. The assumption of the mortgages in the purchase of the property was within the authority thus reposed in him and the finding of the trial court, that he had authority to insert the assumption clause in his deed to her, was justified. Schley v. Fryer, 100 N.Y. 71. 2 N.E. 280. But whether Peizer had authority to insert in his deed to the defendant the clause assuming the mortgages, or whether she had actual knowledge of the fact that he did this, is not of consequence because the defendant clearly ratified the transaction. As the trial court finds she was the real purchaser and owner of the property. The knowledge of Peizer as her agent in the transaction would be imputed to her. Corsello v. Emerson Brothers,...