Sanford v. De Forest
| Decision Date | 26 July 1912 |
| Court | Connecticut Supreme Court |
| Parties | SANFORD v. DE FOREST. |
Appeal from Court of Common Pleas, Fairfield County; Howard B Scott, Judge.
Action by Susan S. Sanford against Robert G. De Forest Administrator, to foreclose a mortgage. Demurrer to the answer was overruled, judgment rendered for defendant, and plaintiff appeals. Affirmed.
Sanford Stoddard, of Bridgeport, for appellant.
Robert G. De Forest, in pro. per.
The complaint in this action alleges that on December 4, 1908, James A. Morris executed and delivered to the plaintiff a mortgage upon certain described real estate to secure the payment of a negotiable note of $1,000, given for money loaned, and payable one year from date; that Morris died, intestate, on the 20th of October, 1910; that the defendant is The administrator of his estate; that the mortgage was recorded November 8, 1910; that by agreement of the parties the mortgaged property has been sold; and that the proceeds of the sale are held by the defendant to respond to the judgment that may be rendered in this action.
The defendant administrator, who is the sole defendant, filed an answer, alleging that at the time the mortgage was given, and up to the time of his death Morris was insolvent, and that his estate has been represented and adjudicated insolvent, and is in process of settlement as an insolvent estate, and that, without said mortgaged property, it will pay but a small percentage of the claims proved against it; that ever since the execution of the mortgage credit has been given Morris upon his record title to said property, and without knowledge of the existence of the plaintiff's mortgage; that the plaintiff withheld the mortgage from record from said December 4, 1908, until December 8, 1910, at the request of Morris that she should temporarily withhold it from record.
The defendant claimed in its answer that, for these reasons, the mortgage was void as against him, and as against the creditors of Morris, who had legally proved their claims against his estate. To this answer the plaintiff demurred, upon the ground, in substance, that the facts therein alleged did not render the mortgage invalid as against the defendant. The trial court overruled said demurrer, and, upon the refusal of the plaintiff to plead over, rendered judgment for the defendant. The overruling of the demurrer is in effect the only error assigned by the several reasons of appeal.
It is true, as the plaintiff claims, that the answer contains no averment that the plaintiff refrained from recording the mortgage for the purpose of defrauding or enabling Morris to defraud any person. But it appears that it was not so withheld from record by accident or mistake, but intentionally, and to accommodate Morris. She was chargeable with knowledge that, by reason of her failure to record the mortgage for nearly two years after it was executed, the records did not disclose the true state of the title to the mortgaged property; and that after the execution of the mortgage, and before it was recorded, persons acting in good faith, and in reliance upon the record title, would be liable to be deceived to their injury, if the after-recorded mortgage could be enforced against them. Manifestly Morris desired that, for a time at least, the existence of this mortgage should not appear of record. The plaintiff knew this fact. Although acting in good faith, she aided Morris in his manifest purpose of concealing the existence of the mortgage from the record. However innocent such an act may be, it is not one which commends itself to a court of equity (Curtis, Receiver, v. Lewis, 74 Conn. 367, 372, 50 A. 878), and especially in actions against executors or administrators of insolvent estates to foreclose mortgages not recorded until after the death of the mortgagors, whose estates are in process of settlement.
Our law regarding insolvent debtors (section 262, General Statutes) provides that " no transfer of property withheld from record for the purpose of concealing its existence *** shall be of effect against creditors, although such transfer may be recorded *** before any proceedings in insolvency are instituted by or against the party making such transfer; " and the settlement of insolvent estates of deceased persons by executors and administrators is, in many respects, quite similar to the settlement of estates by trustees in insolvency proceedings. Bassett, Adm'r, v. McKenna, 52 Conn. 437, 439.
But we do not base our decision of this case upon the ground that the plaintiff was guilty of fraud, nor upon the ground that the mortgage in question was void under the provisions of section 262, but upon the well-established law of this state applicable to the duties and powers of executors and administrators in the settlement of insolvent estates of deceased persons, and upon certain principles enunciated in recent decisions of this court regarding the effect of unreasonable, though not fraudulent, delay in the recording of deeds.
When property has been fraudulently conveyed, or conveyed by a deed not duly recorded, so that it may properly be taken for the payment of the debts of the grantor after his decease, it is the right and duty of his executor or administrator, if such property is needed for the payment of debts, to inventory it, and to institute all proper...
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