Duncan v. Milford Sav. Bank

• Decision Date: 26 February 1948
• Citation: 58 A.2d 260,134 Conn. 395
• Parties: DUNCAN v. MILFORD SAV. BANK et al.
• Court: Connecticut Supreme Court

134 Conn. 395

58 A.2d 260

DUNCAN

v.MILFORD SAV. BANK et al.

Supreme Court of Errors of Connecticut.

Feb. 26, 1948.

Appeal from Superior Court, New Haven County; Mellitz, Judge.

Action by Violet G. S. Duncan against Milford Savings Bank and others for a decree reopening a judgment of strict foreclosure, an injunction and other relief. Trial to the court resulted in judgment for defendants, and plaintiff appeals.

No error.

Vincent P. Dooley and Isadore Chaplowe, both of New Haven, for appellant.

Robert C. Stoddard and Harold C. V. Eagan, both of New Haven, for appellee Milford Sav. Bank.

Nathan G. Sachs, of New Haven, for appellee John F. Carroll, Jr.,

Marvin C. Gold, and Annette P. Gold, both of New Haven, for appellee Leo F. Shurman.

Before MALTBIE, C. J., and BROWN, JENNINGS and DICKENSON, JJ., and WILLIAM J. SHEA, Superior Court Judge.

MALTBIE, Chief Justice.

This action is before us upon an appeal by the plaintiff from a judgment for the defendants. The plaintiff, who had owned certain land the first mortgage upon which had been foreclosed, claims that she is entitled to relief, in the nature of a redemption of the premises, against an attaching creditor, a party to the foreclosure, and against one to whom he had assigned his interest and who had redeemed the property from the mortgage.

As regards this issue, the material facts are not disputed. The plaintiff owned certain real estate in West Haven which was subject to a mortgage to the defendant savings bank. In May, 1945, the bank commenced an action to foreclose the mortgage. The defendant Shurman was made a defendant by reason of an attachment placed on the premises in an action in which he was plaintiff and the plaintiff in this action was defendant. The holder of another mortgage, Mathilde F. Porter, was also made a defendant. In June, 1945, a judgment of foreclosure was entered which fixed the day of redemption for the present plaintiff as December 17, 1945, and the days next succeeding for the other defendants. Thereafter, the judgment of foreclosure was four times opened and new judgments extending the period for redemption were rendered; in the last, the day of redemption for the plaintiff was fixed as the second Monday of July, that is July 8, 1946, and, for the other defendants, the next succeeding days. Each judgment provided that if the present plaintiff or either of the other defendants in the action should fail to redeem she or he should be ‘forever barred and foreclosed of all equity to redeem’ the premises, and that, upon payment of the debt by any incumbrancer after subsequent parties in interest had been foreclosed, the title to the premises should ‘vest absolutely’ in that incumbrancer, subject to any preceding unpaid incumbrances. The plaintiff did not appeal from the judgment. On or about March 20, 1946, while the action was pending, she and Shurman mutually released each other from certain claims involved in the action in which the attachment had been made, and Shurman released the attachment. Shortly thereafter, he again attached the property in another action against the plaintiff, and subsequently, on his application, the judgment was opened and he was given a redemption day. The plaintiff failed to redeem the premises on the day of redemption fixed for her. On July 10, 1946, the day of redemption fixed in the judgment for Shurman, he executed an assignment of any right or interest he had in the property to the defendant Carroll; they went to the office of the attorney for the bank; Carroll there paid the attorney the whole amount due on the mortgage and paid Shurman the agreed consideration for the assignment. On the same day a certificate of satisfaction of the mortgage debt, signed by the attorney for the bank, was filed in court.

Any consideration of the case before us must start with our decision in Newman v. Gaul, 102 Conn. 425, 129 A. 221. In that case Newman, the plaintiff, who had owned property subject to a mortgage, sought relief in an independent action after a judgment foreclosing the mortgage had been rendered. In the foreclosure action certain creditors who had attached the property were made defendants and they were given redemption days. The judgment, as appears from the file of the case, which we have examined, provided that, upon payment of the debt and costs by any incumbrancer after subsequent parties had been foreclosed, title to the property should vest absolutely in him, subject to any preceding incumbrances, and that Newman should deliver possession of the premises, in default of redeeming the premises himself, to the mortgagee or any incumbrancer who did redeem. Gaul, the defendant in the second action, purchased the interests of the attaching creditors, and those interests were assigned to him before the actions in which the attachments were made had gone to judgment; it did not appear that judgments in them had ever been rendered. When the law day of one of the attaching creditors came, Gaul, as assignee of his interests, redeemed the property, filed a certificate of foreclosure and took out execution for possession. One of the claims for relief in the second action was that the plaintiff, owner of the equity in the property when the foreclosure action was brought, was entitled to redeem it from Gaul by paying the amount due him. In the course of the opinion we said, 102 Conn. at page 432, 129 A. at page 224: ‘* * * Newman failed to redeem on his law day, * * * and in accord with the legal and proper provisions of the judgment, he and his heirs and assigns were foreclosed and forever barred of all equity to redeem, and this equity thus cut off, could not be recalled.’ We further said, 102 Conn. at page 435, 129 A. at page 224, that Gaul by his assignment from the attaching creditor abtained all the rights to enforce the claim which the attaching creditor would have had except for the assignment, and that this included the right to redeem the property, which Gaul might assert either in his own right or that of his assignor. We held that title to the premises had vested in Gaul.

Section 5088 of the General Statutes provides: ‘In actions of foreclosure, when a judgment of strict foreclosure shall be rendered and there shall be subsequent incumbrances, the judgment may provide that, upon the payment of the debt and costs by any incumbrancer, after all subsequent parties in interest have been foreclosed, the title to the property shall vest absolutely in such incumbrancer making such payment, subject to such unpaid incumbrances, if any, as precede him.’ This statute does not require that the judgment shall vest title in an incumbrancer who redeems, but it authorizes such a judgment. The lien of an attaching creditor is subject to defeasance in many ways, such as a release or a failure to obtain judgment. It may be that a judgment of foreclosure may, as regards the lien of an attaching creditor, condition the title secured by him...