Dime Sav. Bank v. McAlenney

• Decision Date: 07 October 1903
• Citation: 76 Conn. 141,55 A. 1019
• Parties: DIME SAV. BANK v. McALENNEY et al.
• Court: Connecticut Supreme Court

55 A. 1019

76 Conn. 141

DIME SAV. BANK

v. McALENNEY et al.

Supreme Court of Errors of Connecticut.

Oct. 7, 1903.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by the Dime Savings Bank of Waterbury against Paul F. McAlenney and others.

Judgment for plaintiff, and defendants appeal. Reversed.

February 29, 1888, Joseph Cassidy, of Waterbury, owed the plaintiff $1,800, as evidenced by his note therefor, payable on demand, with interest semiannually in advance. On that day, to secure said note, he executed to the plaintiff a mortgage deed of a certain piece of land in his possession, which mortgage contained the usual covenants of a warranty deed. Said note is still owned by the plaintiff, and unpaid. January 19, 1890, Cassidy died, still possessed of the laud, and leaving an estate, consisting mostly of realty, which estate amounted to more than $20,000 over and above all debts and liabilities. He left a will, in which he gave all his property to the defendant McAlenney. McAlenney was named executor, and qualified. He inventoried the mortgaged premises, entered into possession of them, and settled the estate. Six mouths from and after February 5, 1890, were limited for the presentation of claims. In March, 1891, McAlenney began to pay the interest upon said mortgage note as it accrued, and continued to do so until March, 1895. During all this time both McAlenney and the plaintiff believed that the latter's mortgage was a valid one. Shortly after March, 1895, McAlenney became aware of a defect in his title which he had theretofore believed to be a good one, and so notified the plaintiff. Litigation was soon begun, which, in March, 1897, terminated in the successful assertion by another of a title paramount to that of Cassidy at the date of the mortgage, the acquisition by that person of the possession of the land, and an adjudication that Cassidy had no interest therein at the time of his mortgage to the defendant, and that said mortgage was void and of no effect. November 22, 1898, and again later, the plaintiff exhibited to the defendant, as executor, its claim against the estate for the amount of its damages arising from said eviction and from the breach of the covenant of warranty contained in said mortgage. The executor refusing payment, the present action was begun on said day. The substituted complaint upon which the trial was had alleged not only the exhibitions of claim above recited, but also that the plaintiff had exhibited its claim upon the note to the executor within the six months limited for the presentation of claims. The other pertinent facts are sufficiently stated in the opinion.

Nathaniel R. Bronson and Cornelius J. Danaher, for appellants.

Edward F. Cole, for appellee.

PRENTICE, J. (after stating the facts). This action was originally brought against the defendant in his individual capacity. After a demurrer to the complaint had been sustained in part, a substitute complaint was filed. This having been demurred to with the same result as before, the defendant, in his capacity as executor, was cited in as a party defendant, and another complaint substituted. Another demurrer followed, which was over ruled. After the pleadings had passed through sundry other vicissitudes, unimportant to notice, an answer was filed, and the case went to trial to the jury. After the evidence was closed, the case was taken from the jury and submitted to the court lor decision. The last substituted complaint, in a single count, was apparently framed for the purpose of furnishing a basis for a judgment either for the amount due upon the note or for the damages arising from a breach of the covenant of warranty contained in the mortgage deed, as the proof might warrant. No exception was taken to its form, and we therefore need take none. The court, from the evidence, found that no exhibition of a claim for a breach of warranty had been seasonably made, and therefore adjudged that the plaintiff...