People's Holding Co. v. Bray

• Decision Date: 12 June 1934
• Citation: 118 Conn. 568,173 A. 233
• Parties: PEOPLE'S HOLDING CO. v. BRAY et al.
• Court: Connecticut Supreme Court

173 A. 233

118 Conn. 568

PEOPLE'S HOLDING CO. v. BRAY et al.

Supreme Court of Errors of Connecticut.

June 12, 1934

Appeal from Superior Court, Fairfield County; Arthur F. Ells, Newell Jennings, and Frederick M. Peasley, Judges.

Action to foreclose a mortgage by the People's Holding Company against Margaret Bray and others. The case was tried to the court, and there was judgment of strict foreclosure and appointment thereafter of appraisers for the purpose of a deficiency judgment, a remonstrance to report of appraisers was sustained, and a supplemental judgment was entered denying deficiency judgment, from which plaintiff appeals.

No error.

Nehemiah Candee and Robert M. Wolfe, Jr., both of South Norwalk, for appellant.

John D. Walker and Charles D. Lockwood, both of Stamford, for appellee Margaret Bray.

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

HINMAN, Judge.

This action was brought to foreclose a mortgage given by the defendant Bray to the plaintiff; the complaint demanding, in addition to foreclosures and possession of the mortgaged premises, a deficiency judgment against Bray who had, since giving the mortgage, sold the premises, and the appointment of appraisers to that end. A judgment of strict foreclosure was rendered in favor of the plaintiff on May 4, 1933; the amount of the debt being fixed at $28,433, with interest from that date, and the law day for Bray was set as the first Tuesday of June (June 6th), with succeeding days for two other defendants. Thereafter, on May 19th, on plaintiff's motion, three appraisers were appointed to appraise the premises and make report under section 5083 of the General Statutes. This appraisal was made on June 2d and filed with the clerk of the court on June 5, 1933. Thereupon the defendant Bray filed a remonstrance to the report, which the court sustained on the first ground, stated therein, that " said purported appraisal was not made within the time and in the manner prescribed by law." Thereafter formal proceedings were had culminating in a supplemental judgment sustaining the remonstrance and denying the deficiency judgment against Bray, and the plaintiff appealed therefrom.

The question presented is whether the trial court erred in holding, in sustaining the remonstrance on the ground above quoted, that the appraisal, by reason of having been made on June 2d and before the date limited for redemption (June 6th), so failed of compliance with the statute governing that proceeding, section 5083 of the General Statutes, as to invalidate it. Under the construction of this statute which was adopted by the trial court, the appraisal is required to be made within the period consisting of the ten days following, and may not be made earlier than, the law day. The appellant, while admitting that the provision limits a time beyond which no appraisal and report thereof can be made, contends that they may be made at any time after the judgment of strict foreclosure has been entered and until the expiration of ten days after the time limited for redemption. The portion of section 5083 which is material to the present inquiry is as follows: " Upon the motion of any party to a foreclosure, the court shall appoint three disinterested appraisers, who shall, under oath, within ten days after the time limited for redemption shall have expired, appraise the mortgaged property and shall make written report of their appraisal to the clerk of the court where such foreclosure was had."

A statute should be so construed, having in view its object, as to give effect to the legislative intent. State ex rel. Stamford v. Board of Purchase and Supplies, 111 Conn. 147, 161, 149 A. 410; Newton's Appeal, 84 Conn. 234, 241, 79 A. 742. In Staples v Hendrick, 89 Conn. 100, 103, 93 A. 5, 6, we say of this same provision, then contained in section. 4124 of the General Statutes (Rev. 1902), " the plain object *** is to require a mortgage creditor, who appropriates the property in part payment only of his debt, to apply the actual value of the security to the debt before collecting any claimed deficiency," and we there refer to it as a " provision for fixing the actual value of the property as of the date of the foreclosure, and for making that valuation a conclusive basis for determining the existence and amount of any claimed deficiency." While the term " foreclosure" has been used with somewhat varying...