Hoey v. Investors' Mortgage & Guaranty Co.

• Decision Date: 06 March 1934
• Citation: 171 A. 438,118 Conn. 226
• Parties: HOEY v. INVESTORS' MORTGAGE & GUARANTY CO.
• Court: Connecticut Supreme Court

171 A. 438

118 Conn. 226

HOEY v. INVESTORS' MORTGAGE & GUARANTY CO.

Supreme Court of Errors of Connecticut.

March 6, 1934

Appeal from Superior Court, Fairfield County; Newell Jennings Judge.

Action by Marjorie P. Hoey against the Investors' Mortgage &amp Guaranty Company to set aside a foreclosure judgment obtained by defendant against plaintiff, and for other relief. From a judgment for defendant after trial to the court, plaintiff appeals.

No error.

Nehemiah Candee, of South Norwalk, for appellant.

Edward J. McCarthy, of Bridgeport, for appellee.

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

HINMAN, Judge.

The complaint alleged circumstances pertaining to the rendition of a judgment of foreclosure obtained by the present defendant against the plaintiff on April 22, 1932, and facts subsequent thereto, upon which it was claimed, by the prayers for relief, that the judgment be set aside, the certificate of foreclosure be canceled, and title to the mortgaged premises be revested in plaintiff subject to existing mortgages; also, that the defendant be enjoined from conveying, transferring, or mortgaging the premises and from commencing any proceeding to compel the plaintiff to vacate the premises; other legal or equitable relief, and damages. A temporary injunction was issued pursuant to the prayers therefor, Quinlan, J., but on the subsequent trial on the merits the issues were found for the defendant and judgment was rendered and dissolving the injunction.

The finding made by the trial court includes the following facts: On March 21, 1932, the plaintiff was the owner of the equity of premises, described in the complaint, consisting of about twenty-six acres of land with a dwelling house, a five-car garage, and other buildings thereon, in which the plaintiff and her husband, Matthew P. Hoey, invested about $54,000. The premises now have a market value of $35,600. They were subject to a first mortgage of $18,000 in favor of a bank and a second mortgage of $5,000 dated September 9, 1930, in favor of the defendant, but reduced to $3,740, with interest from June 9, 1931.

On March 24, 1932, the defendant commenced a foreclosure of the second mortgage, service of process was made at the plaintiff's usual place of abode, and the complaint came into the hands of the plaintiff's husband, who acted for her in all negotiations pertaining thereto. Prior to service of this process the defendant company, through R. E. Sprague, its then vice president, had negotiations with Hoey with reference to the payment of an installment of $420 due on the second mortgage note, and Hoey turned over as additional security for the mortgage four bonds of $1,000 each and a note of $500. The bonds and note have been and are still retained by the defendant, but they and others of a similar character were and are worthless. After the service of process, Sprague notified Hoey that the service of the foreclosure papers was a mistake and that the notice of lis pendens would be held off the record. The plaintiff relied upon this statement, gave the papers no further consideration, and did not authorize any attorney to appear for her in the foreclosure action.

The defendant, on finding the securities worthless, obtained a judgment of foreclosure on April 23, 1932, and the law day was fixed as September 28, 1932. On April 23, May 6, and August 1, 1932, the defendant notified the plaintiff that a law day had been fixed. On August 8th Hoey wrote to the defendant inquiring what was meant by the letter of August 1st and reminding him of his promise to discontinue the action, and was informed by letter that the foreclosure action had been started, stopped, and started again and the law day set. No motion was ever addressed to the court by the plaintiff for extension of the law day. On September 12, 1932, the plaintiff paid the defendant $1,000 on account of her indebtedness and promised to guarantee the expenses incurred by the defendant in the foreclosure action, and the defendant agreed to accept the amount due it, less a credit of the $1,000, at any time before the third Monday of January, 1933. The plaintiff and her husband were thereafter prevented from raising further funds by reason of illness in the fall of 1932, and negotiations were further delayed by illness of the plaintiff's attorney. The defendant gave the plaintiff the agreed extension of time, but since September 12, 1932, she has made no tender of her indebtedness or any part thereof to the defendant and failed wholly to perform her agreement. Interest on mortgages, taxes, and insurance premium are accumulating which have been carried by the defendant without any return to it since September 30, 1932. The defendant filed its certificate of foreclosure on February 1, 1933, and thereafter claimed title to the premises and threatened to eject the plaintiff therefrom.

The finding that the bonds and note turned over to the defendant were worthless is not effectively attacked, but the evidence does not sustain the further statement that they were found to be so before the judgment of foreclosure was obtained. It does not appear that the plaintiff, in connection with the $1,000 payment of September 12, 1932, promised to guarantee the expenses of the foreclosure action; the evidence indicating that her refusal to make such guaranty in writing caused the defendant...