Equitable Life Assur. Soc. of United States v. Slade

• Decision Date: 08 January 1937
• Citation: 190 A. 616,122 Conn. 451
• Court: Connecticut Supreme Court
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. SLADE et al.

190 A. 616

122 Conn. 451

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. SLADE et al.

Supreme Court of Errors of Connecticut.

January 8, 1937

As Amended on Denial of Rehearing March 3, 1937.

Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.

Foreclosure suit by the Equitable Life Assurance Society of the United States against Benjamin Slade and others. From a judgment overruling named defendant's plea to the jurisdiction of the court to enter a deficiency judgment, but sustaining named defendant's remonstrance to a report of appraisers appointed after foreclosure judgment and failure to redeem and denying plaintiff's motion for deficiency judgment plaintiff appeals, and named defendant files a bill of exceptions.

Error case remanded, with direction to enter supplemental judgment for plaintiff.

Morris Tyler, of New Haven, for appellant.

Benjamin Slade and Louis Weinstein, both of New Haven, for appellee.

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

BROWN Judge.

This action was brought to foreclose a mortgage given by the defendant Slade to the plaintiff, the complaint demanding in addition to foreclosure and possession of the mortgaged premises, a deficiency judgment. On June 7, 1935, a judgment of strict foreclosure was rendered in favor of the plaintiff, the amount of the debt being fixed at $112,175.82, with interest from that date, and the law day for the defendants was set as October 8, 1935. Thereafter, on October 11, 1935, on the plaintiff's motion, three appraisers were appointed to appraise the premises and make report under section 5083 of the General Statutes. That appraisal was made on October 11th and filed with the clerk of the court on October 16, 1935. Thereupon the defendant Slade filed a remonstrance to the report, hearing upon which was concluded February 14, 1936, and on March 24, 1936, the supplemental judgment appealed from, sustaining the remonstrance and denying the deficiency judgment, was entered. February 12, 1936, the defendant Slade filed a plea to the jurisdiction of the court to render a deficiency judgment of the ground that under section 5083 of the General Statutes no deficiency judgment could be granted because more than 90 days had elapsed since October 8, 1935, the date fixed for redemption by the foreclosure judgment, and issue was joined thereon March 18, 1936. By its judgment the court overruled this plea. During the hearing on the remonstrance, the defendant Slade made the claim of law that the court could not render a deficiency judgment because of the lapse of 90 days from the law day fixed by the judgment of foreclosure. Upon the court's action in overruling this claim the defendant has predicated a bill of exceptions.

The principal question which is determinative of this appeal is whether the court erred in sustaining the remonstrance and denying the plaintiff's motion for a deficiency judgment. This calls, first, for the determination of the extent of the court's power of review in passing upon a remonstrance to the report of appraisers under section 5083. The statute precludes a review by the court of the question of value as a question of fact, and limits the inquiry before it to questions of law. What the Legislature evidently intended was that the action of the appraisers should be final and conclusive unless upon direct attack by some established procedure. Connecticut Mutual Life Ins. Co. v. Rogers, 113 Conn. 14, 17, 154 A. 246.

That this is so is indicated, first of all, by the history of this legislation. until 1833 a judgment of foreclosure barred any further action on the mortgage debt. Chapter 18 of the Public Acts of 1833 removed this bar, and ever since the mortgagee's right to a deficiency judgment has always been coupled with some provision for fixing the actual value of the property as of the date of the foreclosure, as a basis of valuation for determining any claimed deficiency. Acampora v. Warner, 91 Conn. 586, 588, 101 A. 332. The 1833 statute provided for the determination of this value by the court before which the action was pending. This continued to be a function of the court until, by section 2 of chapter 129 of the Public Acts of 1878, the present provision of section 5083 was first enacted, transferring it to three disinterested appraisers, and, that there might be no doubt that the court's function in determining value in all its aspects had been transferred to the appraisers, the act provided: " such appraisal shall be final and conclusive as to the value of such mortgaged property." The provision of section 5083, first appearing in section 4124 of the Revision of 1902, permitting the court to enter a judgment for the deficiency between the debt and the appraisal, was obviously to do away with the necessity of bringing a separate action to satisfy the debt, and in no way affected the power in the appraisers to determine the value of the mortgaged property. Thus, under the statute as it existed from 1833 to 1878, the court's determination of value was conclusive upon the parties because it was a question of fact which this court would not review. The Legislature, being aware of this, obviously intended by the phrase above quoted to give to the report of the appraisers the same status.

Appraisers appointed by the court under this statute act in a quasi judicial capacity. Dunn v. Flynn, 107 Conn. 272, 274, 140 A. 204. While the statute makes no provision for a review of the appraisers' action, we have held that their function is similar to that of appraisers appointed in condemnation proceedings to assess benefits and damages. Therefore a remonstrance lies against their report for any irregularity by which the rights of either party have been infringed. Antman v. Connecticut Light & Power Co. 117 Conn. 230, 239, 167 A. 715; Congress Bank & Trust Co. v. Brockett, 111 Conn. 490, 492, 150 A. 742; Wilcox v. Bliss, 116 Conn. 329, 333, 164 A. 659. But in condemnation proceedings we have held repeatedly that the trial court in reviewing the report of a committee cannot upon a remonstrance retry an issue of fact tried by the committee. Fox v. South Norwalk, 85 Conn. 237, 241, 242, 82 A. 642; Walz v. Bennett, 95 Conn. 537, 540, 111 A. 834; State v. Suifield & Thompsonville Bridge Co., 82 Conn. 460, 465, 74 A. 775. The general principle recognized in these cases indicates the extent of the court's power of review in passing upon the defendant's remonstrance to the appraisers' report in the present case. In short, as already stated, its power to review the question of value here does not extend to the determination of it as a question of fact but is limited to questions of law.

Having in mind that this is the extent of the court's power in such cases, what, if any, question for its consideration was raised by the defendant's remonstrance? Of the four grounds stated therein, it is apparent that the first only can possibly be construed as raising a question of law proper for the court's consideration. Of the other three, one directly raises the question of fact as to the value of the property, and the other two relate to facts claimed to have a bearing thereon. As to these, of a strikingly similar situation presented in Fox v. South Norwalk, supra, 85 Conn. 237, at page 242, 82 A. 642, 644, we said: " The *** grounds of remonstrance each state that damages assessed are too large or benefits appraised too small. The amounts of the damages and benefits were questions of fact to be determined by the committee, and his finding is conclusive, and the question will not be retired by the court."

The first ground is that the appraisers' report " is erroneous and is based upon a mistaken basis of the meaning of the term ‘ fair value’, viz.: that the fair market value of said property is $97,000." This ground of remonstrance does not present the question included in one of the trial court's conclusions, that the appraisers erred in determining the fair market value of the property rather than its actual value, and we disregard that question as not within the issues presented by the remonstrance. Nor does this paragraph of the remonstrance accord with proper practice. To present a claim that the appraisers proceeded upon an erroneous basis in arriving at the value they reported, the remonstrance should have specifically alleged the respect in which it is claimed they committed error. Practice Book 1934, p. 62, § 173 (d); Appeal of Cohen, 117 Conn. 75, 81, 166 A. 747. But the plaintiff took issue with the remonstrance and proceeded to a hearing without raising any objection to the generality of the allegation, and we must regard that defect as having been waived. This ground, upon as liberal an interpretation as the defendant can claim, may be construed as charging that the appraisers labored under an erroneous concept of value. So interpreted, applying the general principles already recited definitive of the court's power, the issue upon the defendant's remonstrance was limited to an inquiry by the court as to what elements the appraisers considered or methods they used in arriving at their conclusion. So much is permissible, the appraisal here being confined, as is proper under section 5083, to the value found, without supporting facts. Beyond this the court could not go. A committe's finding of fact is beyond revision or correction by the court " if there be no illegality in mode of proceeding, and no intentional wrong-doing. Errors of judgment as to the value of property must stand uncorrected." Standard v. Sperry, 56 Conn. 541, 546, 16 A. 261, 262. Such has long been the rule in this state determined by our early decisions. Ashmead v. Colby, 26 Conn. 287, 312, 313.

Consideration of two vital...