Small Business Inv. Co. v. Cavallo

• Decision Date: 07 September 1982
• Citation: 449 A.2d 988,188 Conn. 286
• Court: Connecticut Supreme Court
• Parties: SMALL BUSINESS INVESTMENT CO. v. Frank CAVALLO et al.

Page 988

449 A.2d 988

188 Conn. 286

SMALL BUSINESS INVESTMENT CO. v. Frank CAVALLO et al.

Supreme Court of Connecticut.

Argued June 2, 1982.

Decided Sept. 7, 1982.

Wesley W. Horton, with whom were David J. Wenc, Hartford, and, on the brief, Susan M. Domnarski, law student intern, for appellant (defendant David Lewis, trustee).

William F. Gallagher, with whom were David Ertman, New Haven, and, on the brief, Elizabeth A. Dorsey, New Haven, for appellees (named defendant et al.).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

SPEZIALE, Chief Justice.

This appeal concerns proceedings arising out of the foreclosure action which is involved in Cavallo v. Derby Savings Bank, 188 Conn. 281, 449 A.2d 986 (1982), decided today. In that case, the Cavallos, whose property was foreclosed in this action, petitioned for a new trial, and appealed from the granting of a motion to strike their petition. Id. In this case, on February 11, 1981, the Cavallos obtained an ex parte temporary order restraining the defendant Lewis, who had redeemed the realty, from levying an execution of the judgment of foreclosure obtained in this case. The trial court, Grillo, J., issued a temporary injunction on April 28, 1981, "restricting the defendants from implementing ... an execution of ejectment pending the outcome of an appeal to the Supreme Court in the case of Frank Cavallo, et al. v. Derby Savings Bank, et al." The Cavallos have continued to occupy the foreclosed property.

On September 8, 1981, Lewis filed motions for dissolution of the injunction, for the appointment of a receiver of rents, and for an order for use and occupancy payments. These motions were denied by the trial court, Mulvey, J. Lewis now appeals from the denial of his motions. He makes five claims of error, three concerning issuance of the injunction, one for failure to appoint a receiver of rents, and one for failure to order use and occupancy payments.

Because we have today found no error in the appeal in Cavallo v. Derby Savings Bank, supra, the injunction in this case terminates by its own terms. Lewis' first three claims of error are therefore moot, and we need not reach them. Lewis may now execute his judgment, and a receiver of rents will not be necessary; therefore, we do not address that claim of error.

Only the denial of use and occupancy payments remains before us. The judgment of foreclosure in this case made clear that title would vest absolutely in the encumbrancer who redeemed. Absolute vesting of title is permitted by General Statutes § 49-19 ¹ if the judgment so provides. Duncan v. Milford Savings Bank, 134 Conn. 395, 400, 58 A.2d 260 (1948). Title, therefore, vested absolutely in Lewis on July 25, 1980, one day after his law day, by the terms of the judgment which also ordered the Cavallos to "deliver up possession of said mortgaged premises to ... the defendant redeeming ..." on the same date. At that time, the Cavallos lost their right to possession of the premises.

It is established law that in the case of leased property "[a] tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his [or her] right thereto has terminated. Restatement, 1 Property § 22; 32 Am. Jur. 88." Welk v. Bidwell, 136 Conn. 603, 608-609, 73 A.2d 295 (1950). This principle applies equally to other situations where, as here, a prior right to possession has ended. The Cavallos' right of redemption was extinguished by the foreclosure proceedings. State v. Stonybrook, Inc., 149 Conn. 492, 496-97, 181 A.2d 601, cert. denied, 371...