Atlas Garage & Custom Builders, Inc. v. Hurley

• Decision Date: 15 October 1974
• Citation: 167 Conn. 248,355 A.2d 286
• Court: Connecticut Supreme Court
• Parties: ATLAS GARAGE AND CUSTOM BUILDERS, INC. v. Joan C. HURLEY.

Page 286

355 A.2d 286

167 Conn. 248

ATLAS GARAGE AND CUSTOM BUILDERS, INC. v. Joan C. HURLEY.

Supreme Court of Connecticut.

Oct. 15, 1974.

Harold L. Rosnick, Bridgeport, with whom, on the brief, was Sigmund L. Miller, Bridgeport, for appellant (defendant).

Mark G. Sklarz, New Haven, with whom, on the brief, were Richard A. Sugarmann and Murray Trachten, New Haven, for appellee (plaintiff).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

SHAPIRO, Associate Justice.

The plaintiff brought an action against the defendant seeking to foreclose a judgment lien on real estate in Shelton formerly belonging to the defendant's husband and alleging, among other claims, that the defendant, at an earlier date and after attaching the premises, 'recorded a Judgment of divorce' against her husband 'pursuant to Sec. 52-22 of the Connecticut General Statutes thereby vesting title to said premises in the defendant and merging the defendant's claimed attachment into the title held by her.' In the defendant's answer, these claims were left to the plaintiff's proof. Also, by way of special defense and counterclaim, the defendant alleged that by virtue of her attachment and subsequently-recorded judgment, the plaintiff's attachment and judgment lien should be declared a nullity, 'removing them as a cloud on the legal title of the defendant.' From a judgment rendered in favor of the plaintiff wherein '(t)he issues of liability . . . (were) resolved in favor of the plaintiff,' the defendant has appealed to this court.

On November 1, 1968, the defendant instituted an action against her husband, then the owner of certain realty in Shelton, claiming a legal separation or divorce, custody of and support for their minor children, alimony, counsel fees and a conveyance to her by her husband 'of his interest in the real estate' located in Shelton. On that date, by direction of the writ, summons and complaint, the husband's property was attached to the value of $25,000 and the certificate of attachment was recorded on the land records. Thereafter, by writ, summons and complaint dated December 19, 1968, the plaintiff brought an action against the husband, William C. Hurley, in which damages in the amount of $2700 were claimed, and caused an attachment, recorded on the land records on December 27, 1968, to be placed upon the Shelton premises. On April 30, 1969, the plaintiff obtained a judgment against the husband in the amount of $2465 plus costs of $40.90, and on May 8, 1969, filed a judgment lien on the land records. On February 3, 1970, a judgment of divorce was granted to the defendant, awarding her custody of and support for the minor children, one dollar per year as alimony and title to an automobile, and ordering that the husband's title to the Shelton property be transferred to the defendant, the judgment reciting in part that this 'shall constitute a transfer of this property under Section 52-22 of the General Statutes.' The judgment was recorded on March 31, 1970. The trial court, in the case before us, concluded that the judgment lien recorded by the plaintiff related back to December 27, 1968, being the date of its attachment; that that judgment lien has priority over the attachment placed upon the premises by the defendant on November 1, 1968; and that the transfer of the property to the defendant pursuant to § 52-22 and upon recordation of the judgment on the land records did not relate back to the defendant's attachment but rather served to convey to the defendant title to the property only as of the date of the divorce decree.

The defendant has assigned error in the court's refusal to reach a conclusion contained in her draft finding, in reaching the conclusions which it did reach and in rendering judgment for the plaintiff. The issue dispositive of the appeal is whether the transfer of the husband's title to the Shelton real estate under the judgment of divorce, and made pursuant to General Statutes § 52-22, relates back to the defendant's attachment so as to take priority over the plaintiff's subsequent attachment and judgment lien.

At the outset, we point out that there can be no dispute that the judgment lien recorded by the plaintiff on May 8, 1969, related back to December 27, 1968, the date of its attachment. General Statutes § 49-44; City National Bank v. Traffic Engineering Associates, Inc., 166 Conn. 195, 199, 348 A.2d 637.

General Statutes § 46-14 provides in part that a divorce action may be brought to the Superior Court 'and whenever alimony is claimed, attachments to secure the same may be made by direction in the writ or by an order pending suit in the same manner as in other civil actions.' 'An attachment of property on mesneprocess is a mode of obtaining security for the satisfaction of any judgment which the plaintiff may finally recover. . . . An attaching creditor must stand upon his legal right. He claims a preference over other creditors, and he can only obtain it by complying with the statutory conditions.' Morgan v. New York National Bldg. & Loan Assn., 73 Conn. 151, 152-53, 46 A. 877.

General Statutes § 52-279, entitled 'When attachments may be granted' provides in part that: 'Attachments may be granted upon all complaints containing a money demand against the estate of the defendant, both real and personal.' Section 52-285, entitled 'Attachment of real estate' provides the method by which an attachment is made through means of a certificate which is completed and lodged by the officer by leaving it in the office of the town clerk of the town in which the real estate is situated, to be recorded at length in the land records. The last sentence of the statute reads: 'No such certificate left in the town clerk's office for record shall have the effect of the notice of action pending provided for in section 52-325.' This last noted sentence relates to a lis pendens and its manner of application as a notice of the pendency of an action. Thus a certificate of attachment cannot be used as a notice of lis pendens. In brief, actions based upon attachments are actions in which the plaintiff seeks to satisfy a money demand out of the defendant's property. Such actions are properly labeled actions quasi in rem. They are to be distinguished from actions brought to establish or enforce previously-acquired interests in the property, such as actions to quiet title, to remove a cloud on the title, to set aside a deed, or to foreclose a lien or mortgage. Such actions are properly labeled actions in rem. See 1 Stephenson, Conn.Civ.Proc. (2d Ed.) § 44, pp. 175-76. As to the commencement of a divorce action, our civil procedure makes no provision for imposing a lis pendens but allows the making of an attachment whenever alimony is claimed.

Waterbury Lumber & Coal Co. v. Hinckley, 75 Conn. 187, 52 A. 739, concerned an action in which the plaintiff sought to subject the interest of two defendants in certain real estate to a lien in its favor for a money judgment for materials furnished in repair of a building. The writ directed an attachment of the defendants' property to the value of $200. In its judgment, the trial court declared that the property should be subject to the attachment lien made at the inception of the action, that such lien should be prior to the interest of either defendant, and that such judgment lien should be prior to the interest of either of the defendants, and that a judgment lien might be filed against the premises, predicated upon the attachment lien which should have the same force and effect as is provided by the statutes for the filing of judgment liens. This court found error and held (p. 191, 52 A. at p. 740): 'By such attachment as may have been made in commencing this action no lien was acquired, since the complaint contained no money demand. General Statutes, § 893 (Rev.1902, § 826) (now § 52-279). . . . In the present case no judgment for money damages was rendered, and none could have been rendered upon the complaint.'

As stated earlier, the defendant commenced her divorce action by attaching her husband's interest in the Shelton realty to the amount of $25,000. In her prayer for relief were included claims for alimony and '(a) conveyance to the plaintiff by the defendant of his interest in the real estate . . ..' The referee, acting as the court in the defendant's divorce action, pursuant to her prayer for relief, made an award of alimony, limiting it, however to the sum of one dollar per year. Also, pursuant to § 52-22, the referee ordered the transfer of title to the husband's Shelton real property to the defendant. The defendant argues in her brief that since, pursuant to § 46-14, she was allowed to attach her husband's property to secure an alimony award, it cannot be conceived how such an award would not include the transfer of title to the realty which transfer would automatically relate back to her attachment. As authority for this claim, the defendant cites various cases outside Connecticut, relying mainly on Germania National Bank v. Duncan, 62 Okl. 144, 161 P. 1077 and Graham v. Pepple, 129 Kan. 735, 284 P. 394. In both cases, each involving the instituting of divorce actions where neither wife attached her husband's real estate, the court held that the institution of the divorce action created a lis pendens upon the realty of the husband thereby giving the wife a claim superior to claims of creditors made subsequent to the commencement of the divorce action. This is not the law in Connecticut and the defendant has failed to demonstrate otherwise. The defendant here, having commenced her divorce action by an attachment of her husband's realty, cannot claim at the same time, as she does in her brief, that this also constitutes a lis pendens. As we have already shown, these two proceedings are separate and distinct, and by statute are intended to serve different purposes.

The defendant makes the further claim that an equitable...