Dombron v. Rogozinski

• Decision Date: 12 July 1935
• Citation: 120 Conn. 245,180 A. 453
• Court: Connecticut Supreme Court
• Parties: DOMBRON v. ROGOZINSKI et ux.

180 A. 453

120 Conn. 245

DOMBRON v. ROGOZINSKI et ux.

Supreme Court of Errors of Connecticut.

July 12, 1935

Appeal from Superior Court, Litchfield County; John Rufus Booth. Judge.

Action to foreclose a mortgage and to set aside an alleged fraudulent conveyance by Frances Dombron against Felix Rogozinski and Pauline Rogozinski, his wife. From a judgment for the plaintiff on the foreclosure and for the defendant Pauline Rogozinski on the issue of fraudulent conveyance, the plaintiff appeals.

No error.

Michael V. Blansfield and John E. Whalen, both of Waterbury for appellant.

J Howard Roberts, of Waterbury, and Thomas J. Wall, of Torrington, for appellees.

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

MALTBIE, Chief Justice.

The complaint is in two counts; the first alleges an indebtedness of the defendant Felix Rogozinski upon a note in the amount of $2,000, secured by a mortgage; the second alleges an indebtedness of the same defendant upon a note in the amount, as stated, of $8,750, but which upon the trial was proved to be $6,750, and also that this defendant had fraudulently conveyed a number of pieces of real estate to the other defendant, Pauline Rogozinski, his wife; and the prayers for relief were for damages, that the conveyances be set aside, the appointment of a receiver of rents of the various properties, and such other relief as in equity and justice the plaintiff was entitled to. The trial court found the issues upon the first count for the plaintiff and decreed a foreclosure of the land mortgaged. Upon the second count it found the issues against the defendant Felix Rogozinski only, in so far as they related to his indebtedness upon the note alleged in it; but found the issues upon this count for the defendant Pauline Rogozinski. The questions upon this appeal relate solely to the conclusion of the trial court that the conveyances to Pauline Rogozinski were not fraudulent.

The plaintiff claims that the trial court should have made a specific finding in the judgment upon the allegations of the second count of the complaint that when Felix Rogozinski made the conveyances to his wife he was insolvent. This issue was only relevant to the claim that the conveyances were fraudulent. The finding in the judgment file of the issues upon this count for the defendant Pauline Rogozinski was a sufficient finding of all relevant issues in her favor. Had the plaintiff desired a special finding upon any particular issue, she should have made a motion to the trial court. General Statutes, § 5660; Practice Book 1934, p. 66. § 189; Corbett v. Matz, 72 Conn. 610, 613, 45 A. 494, 48 L.R.A. 217; Seymour v. Norwalk, 92 Conn. 293, 295, 102 A. 577.

The burden to prove that the conveyances were fraudulent was upon the plaintiff, and this involved proof of all facts essential to the establishment of that conclusion. Daly Brothers Inc., v. Spallone, 114 Conn. 236, 241, 158 A. 237; Nowsky v. Siedlecki, 83 Conn. 109, 119, 75 A. 135; State v. Martin, 77 Conn. 142, 58 A. 745. Unless the plaintiff proved that the conveyances were made without any substantial consideration and, when made, rendered Felix Rogozinski unable to pay his then existing debts, or that they were made with a fraudulent intent in which Pauline Rogozinski participated, the plaintiff could not recover. Fishel v. Motta, 76 Conn. 197, 198, 56 A. 558: Porter v. Adams, 98 Conn. 349, 119 A. 358: Pepe v. Santoro. 101 Conn. 694, 697, 127 A. 277; Daly Brothers, Inc., v. Spallone, supra. The trial court has found that at the time the conveyances were made Felix Rogozinski had no debts except such as were secured by mortgages on real estate the value of which amounted to or exceeded the amount of the mortgages, and that he was not insolvent. ...