Hurlbutt v. Hurlbutt
| Decision Date | 10 April 1970 |
| Docket Number | No. CV,CV |
| Citation | 6 Conn.Cir.Ct. 314,272 A.2d 146 |
| Court | Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division |
| Parties | Mable W. HURLBUTT v. Lelette D. HURLBUTT. 18-6610-2435. |
Michael Schless, Hartford, for appellant (defendant).
Paul W. Orth, Fortford, for appellee (plaintiff).
The finding, with such corrections as were made by the trial court, discloses the following situation. On September 15, 1960, the plaintiff sold to the defendant a residence located on one acre of land in the town of Canaan for a price of $32,500. In order to pay this price, the defendant gave a first mortgage to the Connecticut Bank and Trust Company in the sum of $27,500; she also gave to the plaintiff in partial payment of the purchase price a second mortgage as security for the $3000 note which is the subject of this action. The defendant has paid nothing on the principal of this note, which was payable on or before September 15, 1965.
Because defendant was in default on the first mortgage note, the Connecticut Bank and Trust Company, on March 6, 1964, obtained judgment of strict foreclosure. The plaintiff, as second mortgageee, was assigned November 4, 1964, as her law day under the judgment. On that date, knowing defendant's poor financial condition, she redeemed, paying the sum of $28,030.39 in order to do so. To finance this redemption, she executed a mortgage on the property to the New Milford Savings Bank in the sum of $30,000. At the time she redeemed, the plaintiff was unaware of the dilapidated condition of the interior. The plaintiff held legal title to the premises until June, 1966, at which time she quit- claimed the property to the New Milford Savings Bank. By doing so, she obtained a release of the mortgage held by the bank.
During the time that the plaintiff held title she paid $2496.05 interest to the New Milford Savings Bank, $1124.97 for repairs, $607.52 for property taxes, and $464.14 for fuel oil, making a total of $4692.68 for expenses, less an interest deduction of $166, making a net expense of.$4526.68. These expenses were offset forfeited deposit by a prospective purchaser, forfeited deposit by a prospective purcahser, and by the sum of $895, which was received from an insurance company for damage to the roof of the dwelling. These items total $1645. In addition, the plaintiff realized an excess of $1969.61, being the difference between the $30,000 obtained on the mortgage from the New Milford Savings Bank and the $28,030.39 she paid to redeem. The plaintiff did not occupy or rent the premises while she held title. The following facts were considered by the court as being pertinent to the value of the premises: In 1957, the plaintiff purchased the property for $35,000, the land then consisting of seven acres. In 1960, plaintiff sold it to the defendant for $32,500, retaining six acres for herself. On March 6, 1964, the date of the foreclosure judgment, appraisals were $40,000 and $45,000. The appraisers were not produced at the trial in the instant case. On November 4, 1964, the plaintiff mortgaged the property to the New Milford Savings Bank in the sum of $30,000. The bank's appraisers did not at this time view the interior of the dwelling, which was in need of repair. On November 4, 1964, appraiser Borden found the property then to be worth $25,000. It was then in need of substantial repairs. Borden had considerable knowledge of sales and values of comparable properties in the area. In June, 1966, the plaintiff conveyed the property to the New Milford Savings Bank for a release of its mortgage, which was then in the principal sum of $28,921.05. During October, 1966, the bank sold the property to another party for $31,500, less broker's commission. The bank had maintained the grounds. The plaintiff had made repairs previously, as well.
The defendant remained in possession until her law day in November, 1964. During this period, from the date of the foreclosure judgment until her law day, she attempted, without success, to sell at a suitable figure. While the plaintiff held title, from November, 1964, until June, 1966, she attempted, also without success, to sell the property at a satisfactory price. During this period, she obtained an agreement to buy for $32,500. However, the prospective buyer within a short time refused to take title, thereby forfeiting a deposit of $1500.
Upon the foregoing facts, the court concluded that the note sued on is in default and is due and payable in the amount of $4363.70; that the special defense of appropriation or merger, urged by the defendant, was not applicable; that the plaintiff did not intend, by redeeming, to cause a merger or to appropriate the property to the payment of the debt; that the market value of the property during the period when plaintiff held title was $28,000; that, by redeeming, the plaintiff actually lost money; and that the plaintiff was diligent and vigorous in her attempts to obtain a suitable price for the property during the time she held title.
The defendant has attacked numerous paragraphs of the finding and we shall consider those which are necessary to determine the ultimate conclusion of the court that the plaintiff is entitled to recover from the defendant the various items of damage enumerated by the trial court. Where facts are found on conflicting evidence the finding must stand.
In the first and second assignments of errors, the defendant seeks to substitute her version of contested evidence for that found by the court. The defendant's motion to correct fails to demonstrate any of the legal reasons for correcting the finding as permitted by Practice Book § 985. A motion to correct the finding by striking certain facts found is futile where, as here, those facts are supported by evidence and the facts sought to be added are neither admitted nor undisputed. State v. Coulombe, 143 Conn. 604, 609, 124 A.2d 518; Armstrong v. Watrous, 138 Conn. 127, 128, 82 A.2d 800. A fact is not admitted or undisputed merely because it is uncontradicted. Mercier v. American Refractories & Crucible Corporation, 151 Conn. 559, 560, 200 A.2d 716; Goldblatt v. Ferrigno, 138 Conn. 39, 41, 82 A.2d 152. Where there is conflicting evidence, the trier determines the credibility to be given to the testimony. Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; Jarrett v. Jarrett, 151 Conn. 180, 181, 195 A.2d 430. Furthermore, corrections can be made only as to relevant and material facts. Apparently, the defendant is seeking not only to retry the case but, in her motion to correct, to make up deficiencies in her proof at trial, namely, the failure to produce either of the New Milford Savings Bank's appraisers for their expert opinions, subject to cross-examination, and the failure to detail or evaluate the improvements in the structure the defendant allegedly made.
In her third and fourth assignments of errors, the defendant attacks three of the six conclusions of the court. These conclusions are sustained by the facts found and are legally and logically correct. Osuch v. Osuch, 146 Conn. 90, 93, 148 A.2d 138; Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690, 692, 88 A.2d 379; Maltbie, Conn.App.Proc. § 165.
The short answer to the defendant's fifth assignment of error, which presumably relates to the testimony furnishing the basis for a paragraph of the finding is that the defendant has failed to comply with Practice Book § 989(4), especially the second sentence thereof. Consequently, no error has been properly assigned, and the court's ruling may not be reviewed. State v. Guillet, 3 Conn.Cir. 380, 381, 215 A.2d 685, and cases cited; State v. St. Amand, 2 Conn.Cir. 634, 637, 204 A.2d 169.
If we assume the existence of grounds for review and a timely objection based on irrelevancy, the relevance of the plaintiff's postredemption expenses to the question of what satisfaction, if any, she had on the debt owed her is readily apparent. The defense and reply in this case arise out of a mortgage...
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City Sav. Bank of Bridgeport v. Miko
...to have taken place intended to pursue the course which would best protect and promote his or her interests. Hurlbutt v. Hurlbutt, 6 Conn.Cir.Ct. 314, 320-21, 272 A.2d 146 (1970). It is never presumed that a merger resulted where that condition would produce an injustice or would be "injuri......