Sweeney v. Pratt

• Decision Date: 21 January 1898
• Citation: 70 Conn. 274,39 A. 182
• Court: Connecticut Supreme Court
• Parties: SWEENEY v. PRATT et al.

39 A. 182

70 Conn. 274

SWEENEY

v. PRATT et al.

Supreme Court of Errors of Connecticut.

Jan. 21, 1898.

Appeal from district court, New Haven county; Albert P. Bradstreet, Deputy Judge.

Bill by John M. Sweeney against David Pratt and others, to foreclose. From the Judgment of the court, all parties appeal. Affirmed.

This was a complaint praying for the foreclosure of a mortgage on a certain piece of land in the town of Naugatuck. The complaint alleged that on the 1st day of August,

1891, the defendants D. & H. Pratt made 20 of their promissory notes, each for the sum of $200, payable to the order of the Cheshire Manufacturing Company (the first 1, one year from the date, and the other 19, one each six months thereafter, with interest at the rate of 5 per cent. per annum, payable semiannually, together with all taxes on said notes laid against said manufacturing company, or the holders of the notes); that said notes were secured by a mortgage of the tract of land sought to be foreclosed; that 13 of said notes had been paid in full, and the sum of $117.72 on the fourteenth, so that there was unpaid, in whole or in part, 7 of said notes, being those in the said series the last payable, and amounting in the whole to the sum of $1,282.28; that on May 19,

1892, "the said company was compelled to pay, and did pay, the sum of $70 taxes on the property mortgaged, and which had been laid against the said D. & H. Pratt; that on October 2, 1896, the said manufacturing company duly assigned the said 7 unpaid notes, and the mortgage securing them, to the plaintiff; and that he was now the actual and bona fide owner and holder of the said unpaid notes and said mortgage. The complaint, in a second count, prayed for the foreclosure of a judgment lien on the same land. Curtis Thompson, of Bridgeport, and Catherine A. Pratt, of Naugatuck, were made parties defendant, each of whom, it is alleged, had acquired some interest in said land, which accrued after the rights of the plaintiff. The answer of D. & H. Pratt and Catherine A. Pratt alleged that the said Pratts had, in the land on which the judgment lien was placed, at the date thereof, no such interest as could be taken or affected thereby; alleged, also, that the said company had discharged D. & H. Pratt from the payment of said taxes, and that 16 of said notes had been paid in full, and a part of the seventeenth. The answer of Curtis Thompson alleged that there had been paid the sum of $3,400 on said notes, and applied in payment of those which the soonest became due, so that there was at that date due only the sum of $600 of the whole amount of the said notes; that he loaned to the said D. & H. Pratt on the 28th day of May, 1894, the sum of $570, and took as security therefor a second mortgage on the said tract of land now sought to be foreclosed, in the belief that only $600 was due on the principal of said 20 notes; and that he had no knowledge or suggestion that any more was due. The trial court denied the prayer of the plaintiff for a foreclosure of the said judgment lien; denied the plaintiff's claim to have a foreclosure as to the said sum of $70; found that 7 of the said notes were unpaid, in whole or in part, and the principal sum of these notes was not, by their terms, due, but that there was due on said notes the sum of $315.22 of interest; rendered judgment that, unless the defendants paid the said sum so due, they should be foreclosed of all right to redeem the said premises. From this judgment, both parties appealed. The facts of the case, so far as necessary, are stated in the opinion.

E. P. Arvine and George B. Beers, for plaintiff.

Curtis Thompson and Edmund Zacher, for defendants.

ANDREWS, C. J. (after stating the facts). We think that the trial court decided correctly as to the judgment lien. At the time that lien was placed on the land (May 28, 1890), the said D. & H. Pratt had no interest in the land which could have been levied upon under an execution on that judgment. They had only a bond for a deed. They had paid nothing whatever on the notes mentioned in the bond. They had no title to the land. They were not even equitably possessed of any right to have a title. Gen. St. § 3034; Beardsley v. Beecher, 47 Conn. 408, 412; Loomis v. Knox, 60 Conn. 343, 22 Atl. 771; Hobbs v. Simmonds, 61 Conn. 235, 23 Atl. 962.

The trial court has, in effect, found that the Cheshire Manufacturing Company had discharged the said D. & H. Pratt from the payment of the said sum of $70 paid for taxes; and this finding is on evidence to which no objection was made. We think that this finding was conclusive.

As respects the 20 notes mentioned in the complaint, the only question was and is, how many of them are unpaid? Are there 7 unpaid? or are there only 3 or 4? As to these notes, the plaintiff is the assignee of the Cheshire Manufacturing Company. He has just such right in the notes and in the mortgage—neither greater nor less—as that company would have if it was the plaintiff. Indeed, to ascertain the plaintiff's rights in this case, we must inquire what rights of that company were conveyed to the plaintiff by its assignment to him. There is no claim that he has parted with anything since he became the assignee. The right so assigned to the plaintiff will be made to appear by an examination of the several transactions which have been had between the said company and the said D. & H. Pratt, and they are as follows; On the 16th day of August, 1886, the said company gave to the said Pratts a bond for a deed of the land now in question. The condition of this bond was that the said Pratts should pay to said company their 16 certain notes, each for the sum of $437.50, amounting in the whole to $7,000, and payable as was therein specified. On the same day the said D. & H. Pratt made and delivered to the said company 8 other notes, each for the sum of $625, amounting in the whole to $5,000, and secured the payment of said lastmentioned notes by a chattel mortgage of certain machinery in a factory then occupied by the Pratts in Naugatuck. On the said series of 16 notes the said Pratts never paid anything, and never had, and were never entitled to have, a deed, by virtue of the said bond for a deed. In 1891 negotiations were had between the said company and the Pratts which resulted in a compromise. The said 16 notes were surrendered. The said company gave a warranty deed of the land to the Pratts. The Pratts, in payment therefor, made the said 20 notes described in the complaint, and secured the payment thereof by the mortgage now in suit, and also a chattel mortgage on the machinery before mentioned. This machinery was in the factory on the land mortgaged. On the——day of——, 1892, the factory and machinery were totally destroyed by fire, and some dispute arose as to whom the insurance money should be paid to. On the 14th day of May of that year, at a meeting at which the said company was...