Meriden Sav. Bank v. Sujdak

• Citation: 1 A.2d 134,124 Conn. 604
• Court: Supreme Court of Connecticut
• Decision Date: 12 July 1938
• Parties: MERIDEN SAV. BANK v. SUJDAK et al.[*]

1 A.2d 134

124 Conn. 604

MERIDEN SAV. BANK v. SUJDAK et al.^[*]

Supreme Court of Errors of Connecticut.

July 12, 1938

Appeal from Superior Court, New Haven County; Edward J. Quinlan and Edward J. Daly, Judges.

Action for the foreclosure of two mortgages by the Meriden Savings Bank against Stanley Sujdak and others, brought to the Superior Court and tried to the court which rendered judgment of strict foreclosure. From a supplementary deficiency judgment, Leonardo Suzio appeals.

No error.

Cornelius J. Danaher, of Meriden, for appellant Suzio.

Charles M. Lyman and Thompson Dean, both of New Haven, for appellee.

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

BROWN Judge.

This action was for the foreclosure of two mortgages on real estate in Meriden and for a deficiency judgment, the first count of the complaint alleging a mortgage of March 15th 1899, for $1,500 to the plaintiff by Chapin and Christopher S. Howard, and the second a mortgage to it of April 24th 1923, for $7,500 by Leonardo Suzio, hereinafter called the defendant, except when otherwise indicated. The defendant appeared by counsel who joined in a ‘ Stipulation as to Law Day.’ Pursuant thereto by its judgment of June 4th, 1937, the court fixed June 14th, 1937, as the law day for the defendant owner of the equity and June 15th, 1937, for the defendant Suzio, and in accord with an affidavit filed by the plaintiff found the debt due under the first count to be $1,868.74 and under the second $11,394.47, a total of $13,263.21. Neither defendant redeemed and title became absolute in the plaintiff June 16th, 1937. Upon the plaintiff's motion, the court on June 18th, 1937, appointed three appraisers whose report appraising the property free of all incumbrances at $8,321.76 was filed in court June 24th, 1937. There was no remonstrance to this report. July 1st, 1937, the defendant filed a motion to reopen the judgment. August 12th, 1937, the plaintiff filed its motion reciting the $11,394.47 due from the defendant under the second count as maker of the second mortgage and asking for a deficiency judgment against him. On September 30th, 1937, the defendant filed an answer denying any indebtedness to the plaintiff under either count and containing other allegations as a special defense; and also a counterclaim asking among other relief that the second mortgage be declared invalid, and judgment. On October 5th, 1937, the plaintiff joined issue upon the facts pleaded by the defendant as a special defense. October 21st, 1937, the court denied the defendant's motion to reopen the foreclosure judgment, and rendered its supplemental deficiency judgment against him for $5,222.51, the balance of the mortgage debt due on the second count and costs, after deducting the value of the property fixed by the appraisers, less taxes and the mortgage indebtedness due the plaintiff on the first count.

The two questions determinative of this appeal are those involved in the overruling of the defendant's two claims of law; first, that the defendant was not liable for any sum upon a deficiency judgment; and second, that the court should have granted his motion to reopen the judgment of foreclosure. The finding, which is not attacked, discloses these further facts material upon the first question. March 15th, 1899, the two Howards executed a first mortgage of the premises for $1,500 to the plaintiff, which continued to own it to the time of judgment. Subsequently by mesne conveyances the defendant became the owner of the fee, but never assumed liability upon the note secured by the first mortgage. April 24th, 1923, the defendant owed the plaintiff $7,500 as evidenced by his demand note of that date secured by a second mortgage on the property. January 24th, 1924, the defendant conveyed his equity to Louise Sujdak, who May 28th, 1928, conveyed it to the defendant Stanley Sujdak, who assumed both mortgages. The defendant never became obligated to pay the first mortgage, and subsequent to January 24th, 1924, made no payment upon the property or either mortgage. June 16th, 1934, the debt due on the first mortgage was $1,871.49, on the second $11,398.08, making a total debt in addition to $69.50 taxable costs, of $13,339.07, and the property was subject to a prior incumbrance of $205.20 for taxes.

As is apparent from his assignments of error, brief, and oral argument, the defendant bases his main contention that he was not liable for any sum by deficiency judgment, upon a misconception of the nature of such a judgment. The gist of his argument is that never being obligated to pay the first mortgage, he cannot be held liable to pay it under the first count of the complaint, and further that a finding that he owes this amount, essential to support the judgment, is lacking. The judgment, however, is in no sense dependent upon a liability on the defendant's part to pay the first mortgage debt. Nor is the fact that the plaintiff, rather than some third party, happened to be the owner of that debt, of significance in determining the validity of the deficiency judgment. This is predicated upon the defendant's obligation to pay what remains due upon his own express promise to the plaintiff contained in his note, to secure which he gave the second mortgage. The amount so due was ascertained after a proper sum as determined and allowed in the proceeding therefor provided by § 5083 of the General Statutes, had been credited in liquidation of the mortgage security. The amount of the first mortgage indebtedness was only of importance with relation to the judgment, as one of three items going to make up the $13,339.07 total of incumbrances on the property, the taxes due and the second mortgage debt being the other two.

In determining the amount of the deficiency judgment the court of necessity and properly first deducted from $8,321.76 the property's value free of incumbrances as determined by the...