Ensign v. Batterson

• Decision Date: 05 November 1896
• Citation: 68 Conn. 298,36 A. 51
• Court: Connecticut Supreme Court
• Parties: ENSIGN v. BATTERSON et ux.

36 A. 51

68 Conn. 298

ENSIGN

v. BATTERSON et ux.

Supreme Court of Errors of Connecticut.

Nov. 5, 1896.

Appeal from superior court, Hartford county; Ralph Wheeler, Judge.

Action by Charles S. Ensign against James G. Batterson and Eunice G. Batterson, his wife, to redeem a first mortgage on premises in possession of defendants, for an accounting, for a conveyance to plaintiff of the mortgaged premises on payment of the sum fixed for redemption, to foreclose a junior mortgage in default of such conveyance, and for possession. From the decree, plaintiff appeals. Reversed.

In 1878, Sidney A. Ensign gave plaintiff, his son, a note for $2,600, and a mortgage on a vacant lot as security. The Society for Savings and Maria Pitkin each held a prior mortgage. In 1880 the Society for Savings, whose mortgage was first, foreclosed, without making plaintiff a defendant, and obtained title. In 1889 it conveyed the land to Gayton Ballard, who conveyed it to defendant Eunice G. Batterson in 1894, in consideration of $9,912. The defendants and the Society for Savings had continuous possession from the date of the foreclosure decree. Soon after the conveyance to her, Eunice G. Batterson began the erection of a building on the lot. On August 24, 1894, as soon as he learned that the improvement was being made, and before it was completed, plaintiff notified her of his title and claim. Until this time she and her grantor believed in good faith that they had a clear title. She had already expended $7,000 on the improvement, and contracted for $12,000 more. Plaintiff knew of the foreclosure the same year the decree was obtained, and of the conveyance by the Society for Savings to Ballard, etc., but he asserted no claim of lien or title to the property until August 24, 1894. Defendant Eunice C. Batterson completed the improvements after receiving such notice. The value of the improvements, with interest, at the time of the trial, was $34,564. The value of the lot was $11,000. The mortgage to the Society for Savings, with interest, amounted to $12,257. Sidney A. Ensign died intestate in April, 1893, leaving plaintiff as his sole heir, and a widow. Plaintiff was also administrator of the estate. His father had, within six years prior to his death, promised him orally to pay the mortgage note, and take the mortgage. In May, 1887, he sent to plaintiff a quitclaim deed for execution, inclosing a letter, in which he stated that the land was one of the parcels a mortgage on which had been foreclosed without making plaintiff a party; that the quitclaim was wanted to perfect the title; that he should get $20 or $25 for it, or about what it would cost to obtain another foreclosure; that "this is not the claim on which you hold a $2,600 mortgage"; and that there were "several others which we will get something out of also." The decree was, in substance, that plaintiff might redeem by paying to Euuice G. Batterson $44,476.35, the amount of her actual expenditures in purchasing and improving the property, with interest; that upon such payment by a specified day the defendants should convey the property to him; and that, in default of such conveyance, they should be "foreclosed of all their right, title, and interest"; and that, if such sum was not paid by the day named, plaintiff should be foreclosed of all right, title, and interest.

Lewis E. Stanton, for appellant.

Lewis Sperry, for appellees.

BALDWIN, J. On August 24, 1894, the plaintiff held a mortgage lien upon the laud now in question, and also—as against that mortgage—the fee-simple estate in the same land. The mortgage he received from his father, for a valuable consideration, in 1878; the fee-simple estate he had inherited as his sole heir at law, in 1893. The merger of the two estates, which would naturally follow from unity of ownership, was, in equity, prevented by the fact that it would result in the virtual destruction of the interest derived from the mortgage lien. The delivery of the first mortgage to the Society for Savings left in the mortgagor an equity to redeem that mortgage, which, as against every one but the mortgagee, was equivalent to a fee-simple estate. The delivery of the plaintiff's mortgage left also in the mortgagor an equity to redeem it, which, as against every one but the mortgagees, was equivalent to a fee-simple estate. The fore closure of the first mortgage cut off the original equity to redeem it; but, as the plaintiff was not made a party to the suit, it did not affect the equity to redeem his mortgage. The mortgagor, therefore, had he redeemed the plaintiff's mortgage, could have proceeded to redeem the first, because that had been the right of the subsequent mortgagee, in whose shoes he would then stand. Goodman v. White. 26 Conn. 317; Colwell v. Warner, 36 Coun. 224; Loomis v. Knox, 60 Conn. 343. 22 Atl. 771. The plaintiffs mortgage having been duly recorded in 1878, every subsequent purchaser of any interest in the land took with constructive notice of its existence. The defendants, who are now in possession, cannot defeat his lien on the ground that they had no actual knowledge of the incumbrance, because the attorney at law whom they employed to search the title failed to discover or to disclose it. Booth v. Barnum, 9 Conn. 280, 289. Whatever in fact appeared upon the records, they were, so far as his legal title is concerned, conclusively presumed to know. Hunt v. Mansfield, 31 Conn. 488.

At the time of Sidney A. Ensign's decease, the statute of limitations would have been a defense to any action on the note for $2,600, which the plaintiff's mortgage was given to secure, unless its effect could have been avoided by proof of a new promise. The letter of May, 1887, was not sufficient evidence of such a promise, and oral acknowledgments by a debtor cannot, under our statutes, support an action against his estate. Gen. St. § 1094. This section, while in terms referring only to actions against the representatives of a deceased person, must, to carry out the manifest intent of the legislature, be construed to embrace claims presented against estates; for no such claim ought to be allowed if it could not be enforced by an appropriate suit. An executor or administrator is in the position of a trustee, and cannot give away the rights of others. Peck v. Botsford, 7 Conn. 172, 178. The plaintiff, it is true, was the sole heir to his father's estate, as well as the administrator; but, had he sought to diminish it by exhibiting and allowing this note, it would have reduced the share which the widow would otherwise enjoy. His mortgage, therefore, was his only means of collecting the debt; and the lien which it had given him upon the land was still in full force, the mortgagor having been in possession, and having made payments on the note within 15 years prior to the commencement of this action. The mortgage of the Society for Savings never having been foreclosed against the plaintiff, it remained, as against him, a mortgage still. The conveyances to Ballard and to Mrs. Batterson were each in the form of a quitclaim deed of all the grantor's right, title, and interest in and to the premises released, and therefore covered any interest derived from the first mortgage. Mrs. Batterson was then, as respects the plaintiff, in the position of a prior mortgagee in possession. He bad the right to redeem her mortgage; but, upon bringing his action for that purpose in a court of equity, he came under the operation of the rule that he who would have equity must do equity. She had made improvements upon the land mortgaged, which greatly enhanced its value, and had begun to make them in good faith, believing that she was the...