Joseph v. Donovan

• Decision Date: 22 December 1931
• Court: Connecticut Supreme Court
• Parties: JOSEPH v. DONOVAN et al.

157 A. 638

114 Conn. 79

JOSEPH v. DONOVAN et al.

Supreme Court of Errors of Connecticut.

December 22, 1931

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Action by Etta Joseph against Walter A. Donovan and others for the foreclosure of a judgment lien. The case was tried to the court and the court nonsuited plaintiff, and from a judgment entered thereon, defendant appeals.

Error and cause remanded.

Charles A. Harrison and Milton G. Harrison, both of New Haven, for appellant.

Robert J. Woodriff and Louis Shafer, both of New Haven, for appellees.

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

MALTBIE, C.J.

Abraham Gingold began an action in the superior court against the defendants Walter A. Donovan and Effie Z. Donovan, his wife, and caused an attachment to be placed upon their interest in a certain piece of real estate in West Haven. Later he recovered judgment for $4,834.24 damages and his costs and filed a certificate of judgment lien against the property. This action was brought to foreclose that lien against the Donovans, Watson S. Woodruff, George L. Peck, Lucien Sanderson, Elmer E. Keller, and the West Haven Bank & Trust Company. At the trial the court granted a nonsuit against the plaintiff, and she has appealed.

Evidence was offered by the plaintiff in proof of the following facts: On November 23, 1921, Abraham Lander owned the property, and on that day he made a Written lease of it to Donovan for the term of fifteen years from December 1, 1921. This lease contained a provision by which Donovan might, if the lease continued in effect for five years, purchase the property for a certain price, $5,000 to be paid within five years from December 1, 1921, and the balance within ten years from that date. This lease was recorded in the land records of the town. Donovan took possession of the property, paid rentals under the lease, and toward the close of the first five years of occupancy tendered Lander a certified check for $5,000 in partial execution of his option to purchase the property. Lander refused to receive the money because of some claimed breach of agreement by Donovan. Donovan continued, however, to occupy the premises and to pay rental. Later the difficulties between the parties were adjusted, and on December 28, 1927, a new agreement was entered into between Lander and Donovan and his wife. Aside from a provision canceling the lease, this consisted of a contract for the purchase of the premises by Donovan and his wife at a slightly higher price than that fixed in the option in the lease. They were to assume certain mortgages upon the premises, make an immediate payment of $500, the receipt of which was acknowledged, and pay the balance of the purchase price on the transfer of title, which was to be not later than January 16, 1928. After this agreement was made, Donovan continued in possession of the property and rent was paid for it until Lander conveyed it to him, in pursuance of the agreement and a written authorization by Mrs. Donovan to his taking title in his name alone.

On January 10, 1928, the certificate of attachment of the Donovans' interest in the premises was filed. Lander's deed to Donovan is dated January 14, 1928, but there is no reasonable escape from the conclusion upon the evidence that it was not delivered until January 16, 1928. On that day and as part of the same transaction, Donovan gave to Woodruff, Sanderson, and Peck a mortgage of the premises and also a warranty deed of them which recited that it was not to affect the mortgage or their rights under it he also gave a deed of a right of way over the premises to the West Haven Bank & Trust Company; and an agreement was entered into by him on the one hand, and Woodruff, Sanderson and Peck on the other, which provided for a lease of the theater upon the premises to Donovan and that the other parties should endeavor to protect the property from a prior mortgage by refinancing, and to this agreement was appended a further one by Donovan that the premises might be conveyed to the defendant Keller, to be held upon the terms provided in the agreement. On January 28, 1928, Woodruff, Sanderson and Peck executed a quit claim deed of the premises to Keller, reserving their rights under the mortgage, and on the time day Keller executed a quitclaim deed of the premises back to them; the first of these deeds was recorded January 30, 1928, but the second not until May 22, 1930. The purpose of the transaction with Woodruff, Sanderson, and Peck was to enable Donovan to secure the necessary funds to complete the purchase of the property. On December 21, 1928, Woodruff, Sanderson, and Peck, secured a judgment in a foreclosure action brought upon the mortgage made to them by Donovan, and on November...