Head v. Selleck

• Decision Date: 03 March 1904
• Citation: 57 A. 281,76 Conn. 706
• Court: Connecticut Supreme Court
• Parties: HEAD v. SELLECK et al.

57 A. 281

76 Conn. 706

HEAD

v. SELLECK et al.

Supreme Court of Errors of Connecticut.

March 3, 1904.

Appeal from Superior Court, Fairfield County; Silas A. Robinson, Judge.

Action by Daniel Head against Isaac H. Selleck and others on certain judgments. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Robert E. De Forest and Howard W. Taylor, for appellants. Samuel Tweedy, for appellee.

TORRANCE, C. J. The complaint in this case contains two counts. The first alleges, in substance, that Head, the plaintiff, in 1884, in the circuit court of Kenosha county, in the state of Wisconsin, recovered judgment against the present defendants, Martha A. Selleck and Isaac H. Selleck, and one William B. Selleck, now dead, for the sum of $2,000.46, and that, "with the exception of $1,383.98, paid on account thereof," said judgment has never been paid. The second alleges that in the same court, in 1886, Head recovered another judgment against the present defendants and William B. Selleck for $1,948.70, which, "with the exception of $38.70, paid on account thereof," has never been paid. The answer contains three defenses. The first is practically a general denial of the facts alleged in both counts. The second and third defenses were as follows: "Second Defense to First and Second Counts. (1) Both of said alleged judgments have been and were, prior to the commencement of this action, fully paid, satisfied, and extinguished. (2) Said judgments were predicated on certain notes of the alleged judgment debtors; and while said notes, or the notes of which they were renewals, were in existence, the defendant Martha A. Sellick deeded her dower right in a certain homestead property of the value of $15,000, then occupied by her and her husband, William B. Selleck, and situated in said Kenosha, to Darius and Benjamin Selleck, and the said William B. Selleck also deeded his interest in said homestead to the said Darius and Benjamin Selleck, subject to a mortgage of $1,500 to one Bain, upon the express trust and confidence (among other conditions relating to other property of the said William B. Selleck then in the hands of the said Darius and Benjamin Selleck) that said Darius and Benjamin Selleck would pay said notes either with the proceeds of so much of $4,000 worth of personal property, previously placed in their hands by the defendant Isaac H. Selleck, as should be necessary to pay the same, or by the proceeds of the sale of said homestead, and prevent the foreclosure of the Bain mortgage, or pay the same out of the proceeds of the sale of said personal property or homestead, or both; all of which facts were well known to the plaintiff herein. (3) The said Darius and Benjamin Selleck and the plaintiff herein collusively permitted said Bain in good faith to foreclose said mortgage, and had the plaintiff purchase the same at sheriff's sale on December 26, 1885, for $2,544.77, and, subsequently (on November 20, 1888) deeded said homestead to Darius and Benjamin Selleck for the nominal consideration of $1; but the consideration in fact, either in whole or in part, was the payment of the judgments in the complaint mentioned.

"Third Defense to First and Second Counts. (1) The plaintiff is not the owner of the judgments mentioned in the complaint."

The reply to the second and third defenses is a denial. The real contest in the case was upon the issues raised by the second and third defenses. Under the second defense the defendants offered, and the court received, evidence tending to prove the following facts: (a) That said judgments had been, prior to the commencement of this action, fully paid, satisfied, and extinguished. (b) That said judgments were predicated on certain notes of said judgment debtors, and while said notes, or the notes of which they were renewals, were in existence, the defendant Martha A. Selleck conveyed by deed her dower right in a certain homestead property of the value of $———, then occupied by her and her husband, the said William B. Selleck, and situated in said Kenosha, to Nathaniel and Benjamin Selleck, of Danbury, Conn.; that William B. Selleck also conveyed by deed his interest in said homestead to Darius and Benjamin Selleck of said Danbury, subject to a mortgage to one Bain of $1,500; and that the said Isaac H. Selleck transferred by bill of sale to said Darius and Benjamin Selleck certain personal property then in Kenosha. (c) That such conveyances and transfer, and each of them, were made upon the express trust and agreement of said Darius and Benjamin Selleek that they would pay said notes either with the proceeds of the sale of said personal property or the proceeds of the sale of said homestead, and prevent the foreclosure of said mortgage, or pay the same out of the proceeds of the sale of said personal property or homestead, or both; and that all of said facts were well known to the plaintiff herein. (d) That the said Darius and Benjamin Selleck and the plaintiff herein collusively permitted said Bain in good faith to foreclose said mortgage, and had the plaintiff purchase the same at sheriff's sale in December, 1885, for $2,544.77, and in November, 1888, convey said homestead to said Darius and Benjamin Selleck for the nominal consideration of $1; but that the consideration in fact, either in whole or in part, was the payment of the judgments in the complaint mentioned. The defendants offered no evidence to prove that said judgments had been paid, satisfied, and extinguished in any other way or manner than as above stated.

In reply to this evidence the plaintiff offered and the court received evidence tending to prove (a) that said judgments had not been satisfied, and that no payments had been made thereon, except such as were admitted by the pleadings; (b) that said conveyances by Martha A. Selleck and William B. Selleck, and the said transfer by Isaac H. Selleck, were not made upon any such trust or agreement, but for other reasons, and upon other and distinct considerations; (c) that neither the said Darius nor Benjamin Selleck agreed to pay said notes from said personal property or homestead, or the proceeds of the sale of either or both of them, or from any source, or in any way or manner, or to prevent the foreclosure of said Bain mortgage; (d) that the said Darius and Benjamin Selleck, and the plaintiff herein, did not collusively permit said Bain to foreclose said mortgage, and that said foreclosure was had in good faith, and without...