Shaw v. Spelke

Decision Date07 November 1929
Citation147 A. 675,110 Conn. 208
CourtConnecticut Supreme Court
PartiesSHAW v. SPELKE ET AL.

Error from Superior Court, Fairfield County; Edward M. Yeomans Judge.

Action to quiet title to certain real property and to determine the interest of the parties therein, by Abram Spelke and another against William G. Shaw. Judgment for plaintiffs, and defendant brings error. Error, and cause remanded to be proceeded with according to law.

Charles S. Hamilton, of New Haven, for plaintiff in error.

Matthew H. Kenealy, C. Milton Fessenden, Jackson Palmer, and Daniel E. Ryan, all of Stamford, for defendants in error.

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

MALTBIE, J.

This is a writ of error brought to this court on the second Tuesday of April, 1929, to reverse a judgment of the superior court in Fairfield county rendered November 23, 1927, in pursuance of a stipulation of the parties to the action entered into on that date, agreeing that judgment might be entered in accordance with a judgment file attached thereto. The writ of error alleges that the judgment was entered on January 21, 1927, but the copy of the record annexed to the writ shows that the correct date is November 23, 1927. The answer of the defendants in error denies that the record annexed to the writ is a true record and alleges that there was omitted therefrom the reply of the plaintiffs in that action (with two exhibits annexed thereto), as an exhibit annexed to the answer and the stipulation which was the basis for the consent judgment, and these pleadings and exhibits are annexed as exhibits to the answer of the defendants in error. It is not denied that these pleadings and exhibits, omitted from the copy of the record attached to the writ, are parts of the record, and they will be so treated. The defendants deny that there is anything erroneous in the true record, and say that the plaintiff in error was not aggrieved by the judgment which was entered by his express consent and request.

The judgment here attacked was rendered in an action brought by the defendants in error against the plaintiff in error individually and as trustee to quiet their title to certain real property located in Norwalk. The complaint was in the usual form (Practice Book 1922, p. 428) used in actions to quiet title under the statute (Gen. St. 1918, § 5113), alleging simply that the plaintiffs were the owners of the land described, that the defendant claimed interests in it adverse to the plaintiffs' title and praying for a judgment determining the questions and disputes and settling the title to the property.

Shaw, the defendant in that action, filed an answer containing two defenses. The first defense alleged that the premises described in the complaint were held by him as trustee of a certain trust primarily for the benefit of his children; that the purposes of the trust were endangered by the foreclosure of a certain judgment lien; that Spelke, one of the plaintiffs in that action, agreed to advance the money necessary to redeem the premises in process of foreclosure and did so advance the sum of $20,219 and received a warranty deed of the premises executed by Shaw individually and as trustee, and a quitclaim deed of the same executed by the wife and children of Shaw, the beneficiaries of the trust; that at the same time Spelke executed a unilateral agreement reciting the conveyance of the property to him and granting to Shaw, in consideration of the prompt payment by the latter of interest on the purchase price of $20,219 and taxes on the property, an option to purchase the property for the sum of $30,219, such option to be exercised on or before July 15, 1927, to which was annexed an affidavit by Shaw to the effect that the facts recited in the option were true and that the conveyance therein recited as made by himself as trustee and by his wife and children was an absolute conveyance in fact as well as in form; and further alleged that the parties did not intend the transaction to be one involving in fact an absolute conveyance of the property. The second defense alleged that Shaw did not intend to make an absolute conveyance of the premises to Spelke and protested against the form of the agreement, but was led on by the delays of the plaintiffs to a time so near the final law day fixed in the foreclosure action that he could not withdraw from the transaction without allowing the title to the trust property to become absolute in the foreclosing lienor, and that he executed the affidavit under undue influence and economic pressure. He claimed that the instruments of conveyance of the property to Spelke were not intended to convey the fee, but were given as security only, and that as trustee he was still the rightful owner of the fee.

The plaintiffs in the original action filed a reply substantially admitting the allegations of the answer as to the execution of the conveyance of the property to Spelke, and the execution of the option to purchase, and the affidavit annexed to it, and affirmatively alleging the facts in connection with the transaction, but denying that the instruments of conveyance were intended by the parties to operate as security for money advanced, and denying that the affidavit of Shaw was executed under duress. The reply also alleged that Shaw, since October 15, 1926, had been in default in the payments required of him under the option agreement, and that on December 18, 1926, he had filed in the office of the town clerk of Norwalk an instrument in the nature of a caveat, setting forth his claim that the conveyance to Spelke was in the nature of security for the money advanced by him. No answer to this pleading was filed and on November 23, 1927, the parties executed a stipulation that the court might find the issues in the action in favor of the plaintiffs and enter judgment in accordance with a judgment file attached to the stipulation. The judgment recites that the court, in accordance with the written stipulation of the parties signed and filed in court, finds the issues for the plaintiffs, and that the plaintiffs have absolute title to the real estate described in fee simple (except certain portions that had been conveyed since the transfer to Spelke), and that Shaw as trustee has no estate or interest in the property, and that Shaw individually has only such interest therein as he acquired under the option to purchase, set forth in the exhibit attached to the defendant's answer in the action. It further recited that Shaw, individually, was in default in respect to the payments due under the option, and was obligated thereunder to pay the plaintiffs $30,771.46 before he became entitled to receive a conveyance of the premises, and that, upon the payment of that sum...

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20 cases
  • Prout v. Monroe
    • United States
    • Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
    • August 26, 1966
    ...99 Conn. 418, 121 A. 881; Gaul v. Baker, 105 Conn. 80, 134 A. 250; Bowne v. Ide, 109 Conn. 307, 147 A. 4, 66 A.L.R. 1036; Shaw v. Spelke, 110 Conn. 208, 147 A. 675; Bickell v. Moraio, 117 Conn. 176, 167 A. 722; Hagearty v. Ryan, 123 Conn. 372, 195 A. 730; Reaney v. Wall, 134 Conn. 663, 60 A......
  • State v. Ross
    • United States
    • Connecticut Supreme Court
    • January 11, 1983
    ...demanded such action in order to avoid injustice. Reilly v. State, 119 Conn. 217, 221, 175 A. 582 (1934); Shaw v. Spelke, 110 Conn. 208, 215-17, 147 A. 675 (1929). Where the adverse ruling is such as to preclude the party seeking or consenting to the dismissal from prevailing and the judgme......
  • Reilly v. State
    • United States
    • Connecticut Supreme Court
    • November 20, 1934
    ... ... or writ of error. See 3 C.J. 604. In this case, however, we ... have a close counterpart to Shaw v. Spelke, 110 ... Conn. 208, 147 A. 675. There the plaintiff in error had ... individually and as trustee consented to the original ... judgment; ... ...
  • Mahoney v. Beatman
    • United States
    • Connecticut Supreme Court
    • November 7, 1929
  • Request a trial to view additional results

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