Kievman v. Grevers

CourtSupreme Court of Connecticut
Citation189 A. 609,122 Conn. 406
Decision Date04 February 1937
PartiesKIEVMAN v. GREVERS et al.

Appeal from Superior Court, New Haven County; Carl Foster, Judge.

Action for a declaratory judgment, settling title to real estate and other relief, by Sally Kievman against Josephine Grevers and others, brought in superior court. From a judgment for defendants after trial to the court, plaintiff appeals.

No error.

William J. McKenna and Anthony A. E. DeLucia, both of New Haven, for appellant.

Franklin Coeller, of New Haven, for appellees.

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

BROWN Judge.

These material facts are established by the finding: February 20, 1932, Michael DiBiaso by warranty deed conveyed the premises to the plaintiff and the defendant Grevers subject to a $1,425 balance due on a first mortgage to Samuel Gross and unpaid taxes which they assumed. The only other consideration for the conveyance was $50 originally paid by the plaintiff to bind the bargain, $100 paid by her when the deed was given, and a second mortgage back to DiBiaso for $1,860, executed by her and the defendant Grevers. On September 29, 1933, Gelsomina Ciarleglio, as assignee of the first mortgage, obtained a judgment of strict foreclosure finding the debt to be $1,536.36 and fixing the first Monday in January, 1934, as the limitation of the time for redemption for both the plaintiff and the defendant Grevers. On December 26, 1933, the plaintiff redeemed the premises by paying $1,637.10. A lis pendens in this action was recorded August 24, 1933, on the West Haven land records. On January 21, 1934, the plaintiff received a certificate of redemption reciting that she and the defendant Grevers had paid the debt in the foreclosure action. This she recorded on the land records the next day. On January 4, 1934, the defendant Grevers executed to the defendant Palladino a quitclaim deed of all her interest in the premises, which deed was recorded on the land records the next day. When this deed was given, Palladino knew that the plaintiff had redeemed and discharged the foreclosure judgment. Additional facts are stated in the opinion.

The plaintiff by her assignment of errors attacks these vital conclusions by the court; that neither defendant ever abandoned the premises either individually or jointly except as Grevers assigned her interest to Palladino; that defendant Grevers by failing to pay his part of the mortgage debt, had not relinquished his interest in the property; that the plaintiff's only remedy is by foreclosure against the property for the sum she had expended, less the defendant's share of any receipts from the property; and that the plaintiff is not entitled to a declaratory judgment. The first conclusion above is supported by the subordinate facts found and therefore cannot be disturbed upon this appeal. While it is true that such subordinate facts as the failure of the defendant Grevers to pay or contribute anything toward the carrying charges on the property after she and the plaintiff took title, which compelled the plaintiff to pay these out of her own funds, her further failure to take any action to try to prevent or delay the entering of the foreclosure judgment after she had been duly served, her further failure to communicate with the plaintiff concerning, or to contribute toward the redemption of the property after the foreclosure judgment was entered, and her failure after the plaintiff had redeemed to either ask any accounting or offer to contribute her share of what had been paid therefor, by themselves tend to support the plaintiff's contention, other subordinate facts found point the other way. Among these are: The defendant Grevers was a dress-maker who had no money or property of her own; on several occasions after she and the plaintiff purchased the property, she told the plaintiff of efforts she was making to obtain money; and on January 4, 1934, she dealt with the title as owner by deeding her interest to Palladino. The determinative element upon the issue of abandonment is that of intent. We cannot say upon the subordinate facts found that the trial court's conclusion that neither defendant's interest in the property had been abandoned was unwarranted. It did not err in arriving at this conclusion.

The determination of whether the defendant Grevers' failure to pay her part of the mortgage debt resulted in the relinquishment of her interest in the property involves the application of well-established principles of equity. Tenants in common stand in confidential relations to each other in respect to their interests in the common title under which they hold, and since it would be inequitable for one without the consent of the others to buy in an outstanding adversary claim to the common estate and assert it for his exclusive benefit to their injury, if he does acquire such claim he is regarded as holding it in trust for the benefit of all of those of his cotenants in proportion to their respective interests in the common property, who seasonably contribute their share of his necessary expenditures. Note, 54 A.L.R. 875: 7 R.C.L. p. 857, § 51. The principle is applied to protect his cotenants against the buyer's breach of good faith. 54 A.L.R. 878, Note. And this case, where the incumbrance was created by a former owner through whom all parties claim title, falls within it. Op. cit. 894. But as the above statement of the rule suggests, " a cotenant may, by delay, lose the right to benefit by the purchase of an outstanding title by his fellow owner." A failure upon his part to offer to contribute within...

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18 cases
  • United Oil Co. v. Urban Redevelopment Commission of City of Stamford
    • United States
    • Connecticut Supreme Court
    • July 16, 1969
    ...See Adams v. Rubinow, 157 Conn. 150, 167, 168, 251 A.2d 49; Holt v. Wissinger, 145 Conn. 106, 109, 139 A.2d 353; Kievman v. Grevers, 122 Conn. 406, 412, 189 A. 609. The court, nevertheless, did not render judgment on that basis but, as already noted, proceeded to decide the case on its meri......
  • Kellems v. Brown
    • United States
    • Connecticut Supreme Court
    • July 27, 1972
    ...v. Nationwide Mutual Ins. Co., 150 Conn. 203, 211, 187 A.2d 754; Holt v. Wissinger, 145 Conn. 106, 109, 139 A.2d 353; Kievman v. Grevers, 122 Conn. 406, 412, 189 A. 609. More particularly, many of the questions reserved are not limited to the situation of the particular plaintiffs as disclo......
  • Hackett v. Hackett
    • United States
    • Connecticut Superior Court
    • October 12, 1990
    ...since 1978, and that the defendant, because of her laches has waived any interest in the property. He relies on Kievman v. Grevers, 122 Conn. 406, 189 A. 609 (1937). He also maintains that if his claim of laches fails he is entitled to contribution from the defendant for the payments concer......
  • Binning v. Miller, Water Division Superintendent
    • United States
    • Wyoming Supreme Court
    • April 29, 1940
    ... ... A note on the subject is ... contained in 54 A. L. R. 910-912, to which should be added ... the late case of Kievman v. Grevers, 122 Conn. 406, ... 189 A. 609, where it was held that "it is the equitable ... doctrine of laches which cuts off the right of a ... ...
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