Farmers and Mechanics Sav. Bank v. Garofalo

• Decision Date: 30 July 1991
• Docket Number: No. 14236,14236
• Citation: 219 Conn. 810,595 A.2d 341
• Court: Connecticut Supreme Court
• Parties: FARMERS AND MECHANICS SAVINGS BANK v. Vincent A. GAROFALO III et al.

Page 341

595 A.2d 341

219 Conn. 810

FARMERS AND MECHANICS SAVINGS BANK v. Vincent A. GAROFALO III et al.

No. 14236.

Supreme Court of Connecticut.

Argued May 28, 1991.

Decided July 30, 1991.

David L. Gussak, Hartford, for appellant (defendant the Money Store/Connecticut, Inc.).

Jeffrey M. Krupnikoff, Meriden, for appellee (defendant Lyon and Billard Co.).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and BORDEN, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is whether, under General Statutes § 52-285, ¹ an attachment lien on real property accrues and becomes effective as of the date it is signed by the issuing authority or as of the date it is lodged in the town clerk's office. In a foreclosure action brought by the plaintiff, Farmers and Mechanics Savings Bank, the proceeds of the sale of property in East Hampton owned by the named defendant, Vincent A. Garofalo, generated insufficient funds to pay remaining junior lienholders in full. The trial court determined that the claim of the defendant Lyon and Billard Company (Lyon & Billard), a judicial lien creditor, should take priority over the claim of the defendant the Money Store/Connecticut, Inc. (the Money Store), a junior mortgagee. The Money Store appealed this adverse judgment to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

The relevant facts are undisputed. The foreclosure proceedings initiated by the plaintiff generated the sum of $16,270.31 to be disbursed following payment of the named defendant's debt to the plaintiff. The Money Store relied on its recorded mortgage deed for its claim to the remaining sale proceeds, while Lyon & Billard relied on its attachment and the subsequent judgment lien relating back to the attachment for its claim of priority. ²

The parties perfected their respective liens in the following sequence. Lyon & Billard's prejudgment remedy attachment order was signed by a judge on April 21, 1988, and delivered to a sheriff on April 28, 1988. The Money Store's mortgage was executed on April 29, 1988. Lyon & Billard's certificate of attachment was recorded on the East Hampton land records on May 2, 1988. ³ Finally, the Money Store's mortgage deed was recorded on the East Hampton land records on May 4, 1988.

The trial court accepted Lyon & Billard's contention that an attaching creditor's rights accrue upon a judge's signing of an attachment, and therefore did not consider Lyon & Billard's alternate claim that its rights accrued upon delivery of the writ of attachment to the sheriff. In an articulation of its supplemental judgment, the court stated that attachments accrue "from the date a Judge signs the prejudgment remedy, provided the attaching creditor delivers it to the sheriff within a reasonable time and the sheriff records and serves within a reasonable time." The court found that Lyon & Billard's attachment order had been signed before execution of the Money Store's mortgage deed and that delivery and recording of the attachment order had occurred within a reasonable time. Because it concluded that Lyon & Billard's judgment lien related back to the date of its attachment and, therefore, took priority over the mortgage lien of the Money Store, the court awarded the remaining sale proceeds to Lyon & Billard. ⁴ Since it rejected the argument of the Money Store that the priority of an attachment lien dates only from the date of its recording, the trial court did not rule on the question whether the Money Store had recorded its mortgage deed within a reasonable time.

On appeal, the Money Store renews its claim that an attachment lien does not accrue, at least as against innocent third party claimants, until the lien is recorded upon the land records. If we agree with this contention, the Money Store urges us also to resolve in its favor the question of the timeliness of its recording of its mortgage deed. We agree with the Money Store's first claim, but remand the case for an evidentiary hearing to determine whether the Money Store recorded its mortgage within a reasonable time.

I

The right to attach property is purely statutory. Connecticut v. Doehr, --- U.S. ----, ----, 111 S.Ct. 2105, 2114-15, 115 L.Ed.2d 1 (1991). General Statutes § 52-285 identifies the requirements for attaching real property in this state and is controlling on the issue of when an attachment begins to accrue. That statute provides in relevant part: "Real estate shall be attached by the officer by leaving in the office of the town clerk of the town in which it is situated a certificate that he has made such attachment, which shall be endorsed by the town clerk with a note of the precise time of its reception and recorded at length in the land records of such town; and such attachment, if completed as hereinafter provided, shall be considered as made when such certificate has been so lodged." Because attachments did not exist at common law and because tying up a debtor's property prior to litigation of the validity of the creditor's claim is a "harsh remedy"; 1 R. Shinn, Attachment and Garnishment (1896) § 402, p. 743; see also Connecticut v. Doehr, supra, --- U.S. at ----, 111 S.Ct. at 2112; we have construed our attachment statutes strictly. Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 257-58, 355 A.2d 286 (1974); Hubbell v. Kingman, 52 Conn. 17, 19 (1884).

The text of § 52-285 is silent on whether an attachment recorded within a reasonable time of its execution relates back to that earlier date as the effective date of its accrual. This court has never considered whether the legislature impliedly incorporated a relation-back principle therein.

The Money Store urges us not to interpolate a provision for pre-recordation accrual into § 52-285. It relies on our oft-stated rule that, absent statutory ambiguity, we ordinarily assume that we need not elaborate on the intention of the legislature because its intention is presumed to have been expressed in the words of the statute. Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991); Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978). " 'Where the language of the statute is clear and unambiguous, the courts cannot, by construction, read into statutes provisions which are not clearly stated.' " Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984), quoting Point O'Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979).

The Money Store's contention that we should construe § 52-285 to preclude an accrual period for attachment liens finds support not only in the text of the statute but also in the established policy of protecting the integrity of our land records. Statutory requirements for the recording of certificates of attachment in the town clerk's office, like other recording requirements, serve to protect bona fide purchasers and mortgagees from secret incumbrances on real property. Allowing relation back to some time prior to the moment of recording of an attachment would inevitably encroach upon the reliability of this system. No search of the record title, no matter how painstaking and accurate, could protect a potential purchaser or mortgagee from an attachment that had been issued, but not yet recorded. "The policy of [the recording] system, which is rigidly adhered to, requires that the record shall disclose, as nearly as may be, the true state of the title and the nature and extent of the incumbrance upon it." Hubbell v. Kingman, supra, 52 Conn. at 20.

To counter these persuasive arguments for construction of § 52-285 to preclude an accrual period for attachment liens, Lyon & Billard urges us to look beyond the confines of that statute itself. Lyon & Billard maintains that § 52-285 should be interpreted to afford to judicial liens the same treatment as that afforded to recorded mortgage deeds pursuant to General Statutes § 47-10 ⁵ and to recorded mechanic's liens pursuant to §§ 49-34 ⁶ and 49-33(b). ⁷ These statutes have been held to allow for a period of accrual prior to the actual recording of the instrument, so long as recordation occurs within a reasonable time. We find these analogies unpersuasive.

Our recordation statute, now § 47-10, has consistently been interpreted as providing for a reasonable period within which to record a deed of conveyance. That construction finds support in its provision that no conveyance can be effective against subsequent innocent parties "unless recorded on the records of the town in which the land lies." (Emphasis added.) Id. ⁸ The use of the word "unless" as opposed to "until" connotes legislative recognition of the proposition that rights conveyed by a deed may effectively accrue a reasonable time prior to its actual recordation. ⁹ Since Beers v. Hawley, 2 Conn. 467, 469 (1818), construing predecessor statutes with similar texts, this court has permitted a mortgage deed, if recorded within a reasonable time of its execution, to take priority from the date of its delivery, even as to liens recorded prior to the recording of the deed but subsequent to its execution. Apstein v. Sprow, 91 Conn. 421, 99 A. 1045 (1917); Hartford Building & Loan Assn. v. Goldreyer, 71 Conn. 95, 99-100, 41 A. 659 (1898); Goodsell v. Sullivan, 40 Conn. 83, 85 (1873); see 1 Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 308 ("every purchaser of land shall have a reasonable time to procure his deed to be recorded").

Because the wording of § 47-10 has remained in essentially the same form since the 1800s, we may presume legislative acquiescence in our interpretation of the mortgage lien statute. "[I]ts subsequent nonaction may be understood as a validation of that interpretation." Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). In contrast, no ca...