Pettus v. Gault

• Decision Date: 18 December 1908
• Citation: 71 A. 509,81 Conn. 415
• Court: Connecticut Supreme Court
• Parties: PETTUS et al. v. GAULT et al.

71 A. 509

81 Conn. 415

PETTUS et al.

v. GAULT et al.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Isabella M. Pettus and another against Leonard Gault and another to foreclose a mortgage of real estate. From a judgment for plaintiffs, defendant Leonard Gault appeals. Affirmed.

William Burr Wright in his lifetime received from the then owners of the land described in the complaint the note and mortgage also described in the complaint. The note was given to evidence an indebtedness and the mortgage as security therefor. His daughter, the defendant Mary E. Wright Smith, on May 16, 1887, became the owner of this note and mortgage, which continued to be hers until October 12, 1900. She was during all this period a married woman living with her husband, to whom she was married prior to 1877. He died on or about January 9, 1901. On October 12, 1900, Mrs. Smith, for value received, assigned and transferred her interest in the note to the plaintiffs, who are now the good-faith owners thereof. The mortgage was not delivered to the plaintiffs, and they never had possession of it, and Mr. Smith did not join in the assignment. In the course of events one Mary E. Schofield died in December, 1898, possessed of the equity in the mortgaged premises. Pursuant to a provision of her will, its executor conveyed this equity to the Hill & Hubbell Lumber Company April 27, 1899, and shortly thereafter this company conveyed all its right, title, and interest in the premises to the defendant Gault. The defendant Gault filed an answer containing two defenses and a counterclaim. The second of these defenses asserted that on December 28, 1898, said lumber company commenced an action returnable to the town court of Norwalk against Mrs. Smith and placed an attachment therein on her right, title, and interest in the mortgaged premises; that subsequently the company had judgment for $180 damages and $30.15 costs; that February 9, 1899, the company, for the purpose of securing this judgment, filed a judgment lien upon the premises; that February 15, 1899, proceedings for the foreclosure of this lien were begun in said town court, Mrs. Smith and the equity owners being made parties; that judgment of foreclosure was subsequently rendered and times limited for the several parties to redeem; that no one redeemed within the times so limited, the last of which was fixed at April 26, 1899; that on April 28, 1899, a foreclosure certificate was filed of record; that thereafter, to wit, on May 6, 1899, the company conveyed the premises to the defendant Gault by a warranty deed; that the title thereupon became perfect in Gault as the absolute owner of the premises; and that the alleged assignment to the plaintiffs was subsequent to all these transactions. This defense was successfully demurred to. A substitute answer was then filed, which was in turn demurred to. This demurrer was sustained as to the second and third defenses. Upon the trial neither the mortgage nor a copy was offered in evidence, and no evidence was presented to show that the mortgage had been lost or destroyed, or what disposition had been made of it. The defendant Gault alone filed an answer. Mrs. Smith, the only other defendant, made default of appearance.

Edward M. Lockwood, for appellant.

John O'Neill, for appellees.

PRENTICE, J. (after stating the facts as above). The first assignment of error charges that there was error in the sustaining of a demurrer filed to the second defense of the original answer of the defendant Gault. For this answer in its entirety another was later substituted, which, in its turn, was demurred to. When a defendant voluntarily files an amended or substitute answer after a former one has been adjudged insufficient on demurror, he waives all right to except to the action of the court in sustaining the demurrer to the first answer. Mitchell v. Smith, 74 Conn. 125, 128, 49 Atl. 909; Burke v. Wright, 75 Conn. 641, 643, 55 Atl. 14. The defendant contends that his action in filing the substitute answer was not voluntary, but in compliance with an order of court. It appears that, after the second defense and counterclaim contained in the original answer had been held insufficient, the plaintiffs placed upon the short calendar a motion for answer to paragraphs of the complaint standing unanswered, and the court granted the motion, and ordered that an answer be filed within two weeks. As the first defense either admitted or denied all the allegations of the complaint, it does not appear what the reason or purpose of the motion was unless it was prompted by a desire to expedite the filing of any additional defense the defendant might wish to avail himself of. But, however this might be, the so-called order was in no sense a command to the defendant that he answer further. He was left at perfect liberty to do so or not, as he chose. The only compulsion that he was placed under was to file any additional answer that he wished to incorporate in his pleadings within the time specified if he did not wish his right to answer further cut off. The order was nothing more than a limitation of time, and in all respects save as to the matter of time he remained as free to act his will after as he was before it was made. His election to file an amended answer was in the fullest sense a voluntary act on his part, carrying with it the waiver of all right to challenge the correctness of the ruling of the court upon the demurrer to the superseded pleading.

But this defendant, by the operation of this rule, has not been deprived of any substantial benefit. The Hill & Hubbell Lumber Company, to whose rights he has succeeded, acquired upon the facts pleaded in the first answer no interest in the property in question, either by the attachment attempted to be made in its action against Mary E. Wright Smith or by the judgment lien which was filed. Mrs. Smith had no other title or interest in the property than as mortgagee. Such an interest in lands cannot be attached or set off on execution. Huntington v. Smith, 4 Conn. 235, 237; McKelvey v. Creevey, 72 Conn. 464, 467, 45 Atl. 4, 77 Am. St. Rep. 321. Neither can it be reached by a judgment lien. Gen. St. 1902, § 4151. The judgment of the town court of Norwalk purporting, upon the complaint of the lumber company, to foreclose the judgment lien, although Mrs. Smith was made a party to the proceedings, was not effectual, as claimed, to establish in the company as res adjudicata a title to her mortgage interest which had not...