Hartford Federal Sav. and Loan Ass'n v. Lenczyk

• Decision Date: 01 March 1966
• Citation: 217 A.2d 694,153 Conn. 457
• Court: Connecticut Supreme Court
• Parties: HARTFORD FEDERAL SAVINGS AND LOAN ASSOCIATION v. Theodore N. LENCZYK et al.

Page 694

217 A.2d 694

153 Conn. 457

HARTFORD FEDERAL SAVINGS AND LOAN ASSOCIATION v. Theodore N. LENCZYK et al.

Supreme Court of Connecticut.

March 1, 1966.

Michael Sudarsky, Hartford, with whom was Harold L. Biloon, Hartford, for appellant (plaintiff).

Charles G. Iosco, Newington, with whom was Mark S. Shipman, Newington, for appellee (named defendant).

Before KING, C. J., and ALCORN, SHANNON, HOUSE and THIM, JJ.

HOUSE, Associate Justice.

The issue which the parties seek to have determined on this appeal is a very narrow one. It is whether, upon a motion for a deficiency judgment made after judgment of strict foreclosure of a real estate mortgage, the court committed error in its determination of the amount of the deficiency because it refused to deduct from the value of the property as appraised under the provisions of § 49-14 of the General Statutes the amount of a municipal sewer assessment where a notice or caveat regarding the assessment had been recorded prior to the institution of the foreclosure action, but where construction work on the sewer, although commenced prior to the law day, had not been completed by that date.

The finding of facts, as to which no error is assigned, is inadequate to present properly the issue which the parties have both fully argued in their briefs. The finding of facts is limited exclusively to those facts relating to the sewer assessment and does not mention either the mortgage foreclosure or the appraisal pursuant to § 49-14. In the absence of an adequate finding as to these material facts, we are limited in our review to what appears from the exhibits certified to this court on the appeal and those facts which are stated in the finding plus the facts which appear on the record. The latter are those which are admitted in the pleadings and which appear in the judgment. Farrell v. Spangle, 151 Conn. 709, 710, 200 A.2d 487; Gitlitz v. Davis, 146 Conn. 280, 281, 150 A.2d 213. Fortunately in this instance, from a combination of the admissions in the pleadings, the judgment and the limited facts found there appear sufficient facts for us to decide the narrow issue which the parties seek to have determined.

Briefly stated, the material factual circumstances were as follows: The plaintiff secured strict foreclosure of a real estate mortgage from the named defendant, who did not redeem on or before the law day. On the plaintiff's motion, pursuant to § 49-14 of the General Statutes, the court appointed three appraisers, who filed their appraisal report as to the value of the property. The record does not disclose any remonstrance to the report, and it was accepted by the court. The plaintiff thereupon moved for a deficiency judgment. In this motion, the plaintiff included a claim that, in determining the amount of the deficiency between the amount of the mortgage debt, with interest and costs, and the value of the premises as appraised, the court should deduct from the appraised value a sewer assessment in favor of the town of Farmington. A notice of the assessment had been recorded in the land records prior to the commencement of the foreclosure action. The form and content of this notice do not appear except for what can be gleaned from the words 'Notice of Town of Farmington Sewer Caveat' which can be made out from an otherwise undecipherable page of an abstract of title introduced as an exhibit in the case. Construction work on the sanitary sewer in the street on which the foreclosed premises were situated was started prior to the law day but had not been completed by that date. The appraisers were appointed three days after the law day, they made their appraisal seven days after the law day, and they filed their report three days thereafter.

Section 49-14 of the General Statutes provides that upon the motion of any party to a foreclosure action the court shall appoint three disinterested appraisers who shall return to court a written report of their appraisal of the property and 'such appraisal shall be final and conclusive as to the value of such mortgaged property.' It further provides that the mortgage creditor in any further action upon the mortgage debt 'shall recover only the difference between the value of the mortgaged property as fixed by such appraisal and the amount of his claim', and the court 'may, if such appraisal and report thereof have been made, render judgment for the plaintiff for the difference between such appraisal and the plaintiff's claim.'

Although § 49-14 is silent as to the deduction of prior encumbrances from the appraised value, it is well settled that the court should deduct from the amount of the appraisal the aggregate of prior claims against the property in order to determine the value of the security and hence the extent to which the debt or obligation has been satisfied by the application to it of the foreclosed property. Sisson v. Tubbs, 50 Conn. 292, 294; Wilcox v. Bliss, 116 Conn. 329, 334, 164 A. 659; Meriden Savings Bank v. Sujdak, 124 Conn. 604, 608, 1 A.2d 134.

In this case the court found that the sewer assessment was made by the sewer authority of the town of Farmington pursuant to chapter 103 of the General Statutes. Section 7-252, which is included in this chapter, provides that sewer assessments shall be due and payable...