Rollins v. Holcomb

• Decision Date: 04 February 1937
• Citation: 190 A. 260,122 Conn. 664
• Court: Connecticut Supreme Court
• Parties: ROLLINS v. HOLCOMB et al.

190 A. 260

122 Conn. 664

ROLLINS v. HOLCOMB et al.

Supreme Court of Errors of Connecticut.

February 4, 1937

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

Action for foreclosure of a mortgage by Edward H. Rollins against Ida B. Holcomb, administratrix of the estate of Amos R Holcomb, deceased, and others, wherein defendants filed a cross-complaint. From a judgment for plaintiff, defendants appeal, and plaintiff pleads in abatement and moves to erase the appeal from the docket.

Motion to erase granted, and plea overruled.

Arthur E. Howard, Jr., of Hartford, for plaintiff.

S. B Leikind, of Hartford, for defendant administratrix.

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

PER CURIAM.

This action for foreclosure of a second mortgage upon premises of the named defendant's decedent, Amos R. Holcomb, was returnable to the superior court in Hartford county on the first Tuesday of September, 1934. The answer was a general denial and, by amendment, a plea of payment. The defendants also filed a cross-complaint claiming an account, discovery of the amount of payments claimed to have been made, and a release of the mortgage if on accounting it appeared that the note which was secured thereby had been satisfied. The case was referred to a state referee, who filed a report on March 28, 1935, which, upon remonstrance by the plaintiff, was recommitted to the referee, whose second report was filed November 7, 1935, finding the issues of fact in favor of the plaintiff. A remonstrance by the defendants was overruled March 17, 1936, and judgment of foreclosure was entered September 28, 1936. From this judgment the present appeal was taken. In the meantime the first mortgagee, the Federal Land Bank, of Springfield, on March 26, 1935, brought an action for foreclosure of its mortgage making Rollins, as second mortgagee, as well as all the defendants in the present action defendants therein. Judgment was entered November 1, 1935, the law days set for defendant Holcomb being January 6, 1936, succeeding days for other defendants, and for Rollins January 9, 1936, and no appeal was taken therefrom. The judgment provided that title to the premises should vest absolutely in any incumbrancer redeeming, subject only to prior unpaid incumbrances. None of the other defendants redeeming. Rollins exercised his right of redemption and under the terms of the judgment his title thereupon became absolute.

It thus appears that during the pendency of the present action Rollins, by the final judgment in the Federal Land Bank suit and his redemption thereunder, obtained full and complete title to the premises and all of the present defendants by failure to redeem were barred and foreclosed from title therein. It also appears that the only issue interposed in the present action by these defendants was the existence of Rollins' second mortgage as an incumbrance on the premises, their prayer for affirmative relief being for a release thereof if the note be...