Congress Bank & Trust Co. v. Brockett

• Decision Date: 02 June 1930
• Citation: 150 A. 742,111 Conn. 490
• Parties: CONGRESS BANK & TRUST CO. v. BROCKETT ET AL.
• Court: Connecticut Supreme Court

150 A. 742

111 Conn. 490

CONGRESS BANK & TRUST CO. v. BROCKETT ET AL.

Supreme Court of Errors of Connecticut.

June 2, 1930

Appeal from Superior Court, New Haven County; Christopher L. Avery and Earnest C. Simpson, Judges.

Action of foreclosure of mortgage by strict foreclosure or sale by The Congress Bank & Trust Company against Brockett, G. C Cucolo, A. Cucolo, and one Strong, in which plaintiff moved for a deficiency judgment; to report of appraisers defendants G. C. and A. Cucolo and defendant Strong separately remonstrated, the court sustained plaintiff's demurrer thereto and after hearing the court rendered a deficiency judgment against all defendants, and Strong, G. C. and A Cucolo appealed from the sustaining of the demurrer.

Error and cause remanded.

Andrew D. Dawson and Joseph J. Davis, both of Waterbury, for appellants.

Louis M. Rosenbluth, of New Haven, for appellee.

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

WHEELER, C.J.

In this foreclosure action the plaintiff made his motion for a deficiency judgment alleging: The rendition of the judgment of foreclosure in favor of the plaintiff, the failure of the defendants to redeem, the appointment of three appraisers pursuant to statute, who, under oath appraised the mortgaged premises at $73,000, and the existence upon these premises of incumbrances, interest, taxes, costs, etc., making in all a total indebtedness of $81,423.53 with interest from the date of judgment November 8, 1929. Wherefore the plaintiff prayed for a deficiency judgment in its favor against the defendants.

The defendants Cucolo and the defendant Strong remonstrated against the acceptance of the report and moved that it be rejected, alleging: The appraisers did not perform their duties under the statute in that they did not as a committee, view the premises together, or consider their value, or fix the value upon the property, but fixed it irregularly and not in accordance with the statute. On December 10, 1929, the appraisers met and conferred for the purpose of determining the value of the premises, but failed to agree, neither did a majority agree nor at any meeting did they agree, and it was agreed between them that each would file a report with the clerk of the court showing the valuation fixed by each appraiser. Subsequently two of the appraisers met and conferred without the knowledge of, or notice to, the third appraiser, and determined by themselves the value of the premises in entire disregard of the suggestion or advice of the third appraiser. The report of the majority of the appraisers was not the result of the deliberation of the appraisers acting as a committee, but of two of the appraisers only.

The plaintiff demurred to the remonstrances because: It appeared from it that all the appraisers considered together the appraisal, that they had all been notified to act and at the first hearing could not agree, that there is nothing in the statute which prevents two of them from later agreeing upon the same valuation. It does not appear that the presence of the third appraiser...