W. F. Miller Co. v. Grussi

• Decision Date: 27 June 1916
• Citation: 98 A. 90
• Court: Connecticut Supreme Court
• Parties: W. F. MILLER CO. v. GRUSSI et al.

98 A. 90

W. F. MILLER CO.

v. GRUSSI et al.

Supreme Court of Errors of Connecticut.

June 27, 1916.

Appeal from City Court of Meriden; Frank S. Fay, Judge.

Action by the W. F. Miller Company against William Grussi and others.There was judgment for defendants, and plaintiff appeals.No error.

Cornelius J. Danaher, of Meriden, for appellant.George A. Clark, of Meriden, for appellees Fitzgerald and Budd.

WHEELER, J. Fitzgerald, on August 11, 1911, entered into a contract known as a bond for a deed with the defendant Grussi, by which he agreed to sell Grussi certain premises, and to deliver to him, on or before February 9, 1921, a warranty deed of the same, subject to a mortgage of $2,000, in consideration of the payment by Grussi of $1,150 on or before February 9, 1921, payable $200 at the execution of the agreement, $50 on or before February 9, 1912, and $50 on or before each February 9th and August 9th thereafter, and the balance on or before February, 9, 1921, and the assumption by Grussi of said mortgage with the interest thereon and taxes thereafter accruing.And Grussi, in consideration of the promises of Fitzgerald, agreed to these terms, and further agreed that in case he failed to make the several payments, he should forfeit all claim to the premises and all moneys paid in pursuance of the agreement.Grussi paid the $200, and four of the semiannual payments, and some interest and taxes.He did not make such payments after August 9, 1913.He was, on April 28, 1915, in default upon three semiannual payments, the interest on the mortgage due May 1, 1915, and the taxes due April 21, 1015.Prior to April 28, 1915, Grussi notified Fitzgerald that he would, abandon his contract and leave the premises, and Fitzgerald and Grussi thereupon mutually agreed orally to the abandonment and to the cancellation of the bond.In pursuance of the mutual agreement Grussi left the premises, and Fitzgerald took possession of the same and paid the taxes and interest due.On May 22, 1915, Grussi executed a quitclaim deed of these premises to Fitzgerald, it being intended as a release of the bond for a deed.And on the same day Fitzgerald by warranty deed conveyed these premises to the defendant Budd for $3,200.The plaintiff attached the interest of Grussi in these premises on May 13, 1915, in an action to recover upon an account contracted by Grussi.The plaintiff took judgment and filed a judgment lien against these premises on September 13, 1915.A second judgment lien was filed October 29, 1915, and suit to foreclose this lien was commenced on October 30, 1915.

The defendants by their denial put in issue the allegation of the complaint that Grussi had an interest in these premises by virtue of the agreement for a deed, and by specific allegation in their answer alleged that he had no interest in these premises, and none that could be taken by attachment, and that all right, title and interest in these premises on this date was in them.Grussi acquired by his agreement and payments thereunder an equitable interest in the premises in question which was subject to attachment.Reynolds v. Fleming et al., 43 Minn. 513, 45 N. W. 1099;Sweeney v. Pratt et al., 70 Conn. 274, 277, 39 Atl. 182, 66 Am. St. Rep. 101.His equitable interest in the premises could not be lost, ipso facto, by the mere breach of his agreement.His failure to keep his contract rendered it possible under its terms for Fitzgerald to enforce its breach, but the forfeiture did not arise upon the breach and without action by Fitzgerald.Chalker v. Chalker, 1 Conn. 79, 6 Am. Dec. 206.

In this proposition of law the plaintiff is clearly right.But we do not understand from the record that the trial court ruled otherwise.We also agree with the plaintiff that had its attachment preceded the date of the abandonment of the property, its rights acquired under its attachment could not have been disposed of in this way.This proposition is inapplicable, for the record shows that the abandonment preceded the attachment by upwards of two weeks.So, too, we agree that the defendant Budd, who bought the premises in question, stood in no better position than Fitzgerald, since he was charged with notice of the attachment of record by the plaintiff.

We are of the opinion that the trial court was mistaken in holding the remedy of General Statutes, § 834, applicable to real estate.Its terms and its history make it clear that it applies exclusively to personal property, but this holding was only one of the several grounds for its judgment; and, as we think the judgment correct, this error is harmless.

The plaintiff argues that the abandonment was a transfer of an interest in land, and, being oral, was within the statute of frauds.This is a mistake.The abandonment in this case was not a transfer of an interest in land.It was the giving up of the possession of land held under a contract upon the fulfillment of which the possessor might obtain title.He had until that time an inchoate interest, but no title.The surrender did not affect the title, for Grussi had none; he merely surrendered the possession.

Eminent authority lays it down as the common law that a legal...