Tiernan v. Savin Rock Realty Co.

• Court: Connecticut Supreme Court
• Writing for the Court: AVERY, J.
• Citation: Tiernan v. Savin Rock Realty Co., 115 Conn. 473, 162 A. 11 (Conn. 1932)
• Decision Date: 09 August 1932
• Parties: TIERNAN v. SAVIN ROCK REALTY CO. et al.

162 A. 11

115 Conn. 473

TIERNAN v. SAVIN ROCK REALTY CO. et al.

Supreme Court of Errors of Connecticut.

August 9, 1932

Appeal from Superior Court, New Haven County; Frank P. McEvoy Judge.

Suit by Alice C. Tiernan, as administratrix of the estate of James E Tiernan, deceased, against the Savin Rock Realty Company and others, to settle the title to certain realty and for a reconveyance and other relief. After a demurrer to the complaint was overruled, judgment was rendered for plaintiff and defendants appeal.

Error and judgment directed for defendants.

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

George W. Crawford and Samuel A. Persky, both of New Haven, for appellants.

Philip Pond and Joseph B. Morse, both of New Haven, for appellee.

AVERY J.

The plaintiff, Alice C. Tiernan, brought this action as administratrix of the estate of her husband, James E. Tiernan, deceased, against the Savin Rock Realty Company and the brothers and a sister of the deceased, who claimed to be stockholders in that company, seeking to have certain deeds to the defendant company declared null and void and the title to the property vested in the estate of James E. Tiernan and his heirs, an accounting by the defendants for the rents and profits of the real estate subsequent to the death of James E. Tiernan, and a decree directing the defendants to deliver possession thereof to the plaintiff; also to have certain shares of stock in the Savin Rock Realty Company, Inc., issued to the individual defendants declared null and void, and surrendered, and a decree settling the title to all of the real estate. Judgment was entered in favor of the plaintiff in accordance with all her prayers for relief, and the defendants have appealed.

Of the one hundred assignments of error, eighteen are based on the refusal of the trial court to find material facts which are claimed to have been admitted or undisputed, thirty-eight relate to findings of facts claimed to have been made without evidence, and the other assignments are directed to conclusions drawn by the court from the facts found. Most of the facts sought to be added to the finding, so far as they are admitted or undisputed and material, appear in the finding, although not always in the exact language of the appellants' draft. The assignments relating thereto are therefore without merit, and amount to no more than an attempt to substitute the findings of the appellant for those of the court. Palmer v. Palmer, 107 Conn. 89, 90, 139 A. 507; Gallaher v. Southern New England Telephone Co., 99 Conn. 282, 290, 121 A. 686; Norwalk Tire & Rubber Co. v. Manufacturers' Casualty Ins. Co., 109 Conn. 609, 610, 145 A. 44. Other additions to the finding requested were that the court find that there was no evidence as to certain features of the case. It is proper enough for a court to make such findings where, to do so, will make clear the actual situation before the trial court and avoid inferences unfair to the appellant which might otherwise arise. Sprague v. New York & N.E. R. Co., 68 Conn. 345, 356, 36 A. 791, 37 L.R.A. 638. Ordinarily, the appellant has the benefit of the lack of proof without any such finding; because the fact, the absence of which he desires to take advantage of, is not in the finding, and, if essential, he can attack the conclusion upon that basis. So far as such additions were correctly asked, the trial court might, in its discretion, refuse to insert them, because the situation would not be materially clearer and the appellant is not deprived of the advantage resulting from the failure to find the facts as to which it was claimed there was no evidence.

Other assignments of error are directed to the finding as made on the ground that some of the facts therein stated are not supported by evidence. The appellants are entitled to certain corrections in the finding which we include in the following statement: So far as material to the legal conclusions arrived at by the trial court, the facts may be stated as follows: May 28, 1924, the plaintiff's decedent, James E. Tiernan, and his five brothers, filed, in the office of the secretary of state, a certificate of incorporation of the Savin Rock Realty Company, Inc. Its purpose was to hold and deal in real estate. Its authorized capital stock was $15,000, and the amount with which it was to commence business was the same. The certificate of incorporation was duly approved by the secretary of state June 5, 1924, but no certificate of organization was ever filed. This corporation is hereinafter referred to as the 1924 corporation. June 10, 1924, James E. Tiernan, by quit-claim deed, conveyed to the company a piece of property in the town of West Haven, then owned by him, with a building thereon known as the Beach House. The consideration recited in the deed was $1 and other valuable considerations. The equity in the property so conveyed was approximately $15,000, and the revenue stamps upon the deed amounted to $15, indicating a consideration of $15,000, equaling the amount of capital stock with which the corporation was authorized to commence business, as set forth in its certificates of incorporation. No consideration was ever paid to or received by James E. Tiernan for this transfer. No payment for the capital stock of the corporation other than this conveyance was indicated or claimed. November 24, 1925, Gertrude B. Tyner conveyed to the 1924 corporation certain real estate on Thomas and Ward streets in West Haven. The court found that this property was purchased by the plaintiff's intestate. We cannot find in the record any evidence directly or by reasonable inference that Tiernan purchased this property conveyed to the corporation by Gertrude B. Tyner. On April 29, 1926, by quit claim deed executed by James E. Tiernan, described as president and agent, the 1924 corporation conveyed to James E. Tiernan a portion of this property. On April 14, 1927, a portion of the property conveyed by Gertrude B. Tyner was mortgaged to the West Haven Bank & Trust Company for $3,000 by a deed with a defeasance clause in the form usual in such instruments, reciting an indebtedness to the grantee in the sum of $3,000, as evidenced by its promissory note. The instrument was executed, " The Savin Rock Realty Company, Inc., by James E. Tiernan, its President." On March 7, 1927, James E. Tiernan caused to be executed and recorded a quit claim deed to the 1924 corporation of premises Nos. 19, 21, and 25 Grove street in the town of West Haven. The consideration recited in the deed was (a) $1 and other valuable considerations; (b) assumption by the grantee corporation of an agreement to pay a mortgage to Frank and James E. Wilson for $7,400; and (c) assumption and agreement to pay taxes on list of 1926.

The execution and delivery of the various deeds of property to the 1924 corporation by the plaintiff's decedent was not procured by any fraud deceit, or unconscionable conduct of any of the defendants, and was not the result of accident, but the decedent executed and caused to be recorded the various deeds and conveyances to it under the expectation and belief that the organization of the company would be legally completed, that the corporation could hold title to property, and that he could hold his property in the corporate name or could lawfully manage and handle the property as president and treasurer under the corporate name. From 1925 to 1928, he executed various leases of concessions on these properties to various lessees. Some of these leases were signed, " The Savin Rock Realty Company, Inc., by James E. Tiernan, President" ; others were signed by himself personally. Some were recorded, and some were not. The rent was paid by checks made payable to James E. Tiernan. From 1924 to 1928, the plaintiff's decedent filed with the assessors tax lists, in which the real estate was listed as the property of the Savin Rock Realty Company, Inc., which were signed by him, sometimes as treasurer and sometimes without any designation of title. The tax bills were made out against the Savin Rock Realty Company, Inc. Tiernan also took out sundry insurance policies upon the property in question, which were made out in the name of the Savin Rock Realty Company, Inc. A bank account in the name of the Savin Rock Realty Company was carried in the Home Bank & Trust Company of West Haven; but the records available running back to May 2, 1927, showed no such account until May 5, 1930, after the death of the plaintiff's intestate, who died September 23, 1929. The plaintiff's intestate had a bank account in his individual name in the Home Bank & Trust Company from May 2, 1927 to October 18, 1928.

May 14 1928, plaintiff's decedent, together with three of his brothers who had been incorporators of the 1924 corporation, executed a certificate of incorporation incorporating the Savin Rock...