Hunn v. Koerber
| Decision Date | 05 October 1971 |
| Docket Number | No. 114-70,114-70 |
| Citation | 129 Vt. 490,282 A.2d 831 |
| Parties | Leona B. HUNN, Successor to Robert B. Eldredge, Trustee, (Deceased) v. Edward W. KOERBER, Middlesex College Corporation, et al. |
| Court | Vermont Supreme Court |
Gelsie J. Monti, Montpelier, and Hiram S. Hunn, Plainfield, for plaintiff.
John A. Burgess, Montpelier, for defendants.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ. HOLDEN, Chief Justice.
This is a proceeding to foreclose a real estate mortgage dated June 24, 1966, which, according to the complaint, the defendant Middlesex Coolege Corporation assumed and agreed to pay. It appears that the mortgage was originally given to the Bank of Waterbury and later assigned to the plaintiff's predecessor, Robert E. Eldredge, dredge, trustee. On Mr. Eldredge's death, Leona B. Hunn was substituted as party plaintiff by stipulation of the parties to this appeal. The complainant has joined numerous defendants by the allegation that they have, or may claim an interest in the mortagaged property. The defendant Koerber is included with the allegation that he is an attaching and judgment creditor of the Middlesex College Corporation, holding an execution which issued October 28, 1969.
This proceeding was commenced on January 15, 1970 and the defendant Koerber was served in due course. He filed an affidavit of defense, as required by the chancery rules then in effect. Before hearing on the issues presented by the defense, the plaintiff moved to strike the allegations first made concerning the defendant Koerber's interest in the property and challenged his right to defend against the foreclosure.
The chancellor heard the motion and made findings of fact which report that the defendant Koerber, as plaintiff in an action at law against the mortgager, attempted to attach the mortgaged property by lodging on May 5, 1967, copies of the writ with the town clerk of Middlesex where the property was located. The appeal in that case is reported in Koerber v. Middlesex College (Vt.1969) 258 A.2d 572.
It appears that the town clerk failed to record the attachment. When the plaintiff's predecessor trustee acquired the notes and mortgage in suit, by his assignment on January 2, 1970, he had no notice of the attachment. On the strength of these facts the chancellor ruled on August 6, 1970, that the defendant Koerber had no standing as a party to the action and ordered his plea in defense of the foreclosure stricken.
The defendant Koerber undertook an appeal from this order. His effort was met in this Court by a motion to dismiss on the ground that the order was not final and hence not appealable. The motion to dismiss the appeal from the chancellor's order of Aughst 6 was granted by this Court on December 2, 1970.
In the interim the cause had been advanced to a decree of foreclosure which was dated October 12, 1970. The final decree recites that all defendants, except the defendant Koerber, had defaulted by failure to appear or answer the complaint. The decree also incorporates the substance of the prior ruling that the defendant Koerber has no standing as an attaching creditor to defend the action and has no right to redeem the mortgaged property from foreclosure.
The defendant Koerber also filed a timely notice of appeal from the decree of foreclosure. We denied, pro forma, the plaintiff's second motion to dismiss the Koerber appeal and granted the appellant an opportunity to comply with 12 V.S.A. § 4601, governing appeals in foreclosure proceedings. After notice and hearing, the chancellor granted the requisite permission for review with a provision to afford the plaintiff security, pending disposition of the case on appeal. The case is now ready for review.
The first assignment of error claimed by the defendant Koerber is directed to the chancellor's order which denied him standing and precluded him from defending the action. The findings make it clear that this aspect of the decree is founded on the fact that the town clerk of Middlesex failed to record the Koerber attachment of May 5, 1967.
Koerber's appeal does not challenge the priority of the plaintiff's mortgage lien. And we are not dealing with the rights of a subsequent bona fide purchaser who acquired the property without notice of the attachment. Compare, Burchard, Wilson & Co. v. Town of Fair Haven, 48 Vt. 327, 335.
The mortgage sought to be foreclosed was executed and recorded in June 1966. It was prior in time and recording to Koerber's action against Middlesex College, which was not begun until June 1967. As far as the plaintiff's mortgage is concerned, Koerber's standing is that of a subsequent attaching creditor.
The attachment was...
To continue reading
Request your trial
-
Kirk v. MacDonald
...395, 396-397, 58 A.2d 260 (1948); Andrews v. Connecticut Properties Inc., 137 Conn. 170, 171, 75 A.2d 402 (1950); Hunn v. Koerber, 129 Vt. 490, 494, 282 A.2d 831 (1971); 1 Whitsie, Mortgage Foreclosure § 377, at 519 (4th ed. 1927). Cf. Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 485......
- Miner's Estate, In re
-
Haner v. Bruce, 84-319
...that the clerk's failure to index a mortgage did not invalidate the effect of its recordation. In a more recent case, Hunn v. Koerber, 129 Vt. 490, 282 A.2d 831 (1971), this Court ruled that an attaching creditor had standing to defend a mortgage foreclosure action although the town clerk h......
-
Schott v. Baker, 212-72
...of the petition for foreclosure with the town clerk and the recording of the final judgment. The broad language of Hunn v. Koerber, 129 Vt. 490, 494, 282 A.2d 831 (1971), apparently to the contrary, actually applies to persons in the position of the defendant in that particular case, who ac......