Wells v. Cooper

• Decision Date: 28 September 1888
• Citation: 17 A. 281,57 Conn. 52
• Court: Connecticut Supreme Court
• Parties: WELLS et ux. v. COOPER.

17 A. 281

57 Conn. 52

WELLS et ux.

v. COOPER.

Supreme Court of Errors of Connecticut.

Sept. 28, 1888.

Appeal from city court of New Haven; PICKETT, Judge.

J. Bheldon, for plaintiffs. H. L. Hotchkiss, for defendant.

LOOMIS, J. This is an action to recover the forfeiture provided in section 4, p. 358, Gen. St. 1875. now constituting section 3013, Gen. St. 1888. The statute is as follows: "If such person [the mortgagee in a foreclosure suit] shall neglect to make and lodge such certificate for one month after such title shall become absolute, he shall forfeit five dollars to him who shall sue therefor for every month of such neglect." It seems from the finding that the title to the mortgaged premises became absolute in the mortgagee pursuant to the decree of foreclosure on the first Monday of July, 1881, which was the 4th. day, and that the required certificate was not filed until the 7th day of February, 1887. The suit was commenced by writ issued June 7th, but served on the 8th day of June, 1887. Upon the trial the plaintiffs claimed that the neglect on the part of the defendant was one continuous offense, of 66 months duration, commencing at the end of the first month after the mortgage title became absolute, and ending when the certificate was finally filed. The defendant pleaded the statute of limitations against so much of the claimed forfeitures as had not accrued within one year, and that the certificate, when filed before suit commenced, was a complete bar to the suit, and further claimed that, if the action was not so barred, the right of recovery was limited to one forfeiture of $5. Some other points of defense were made, which we may refer to in the course of the discussion, but the above embraces the main contention in the case. The court did not accept the claims of either party in full, but rendered judgment for the plaintiffs to recover the amount of forfeitures incurred within one year before the commencement of the suit, and before the time when the certificate was filed, namely, for the sum of $40, less a certain sum pleaded and allowed as a set-off. Both parties have appealed from the judgment, the plaintiffs because the court did not allow them the entire forfeiture of $5 a month for the whole time, and the defendant appealed from the denial of each of the claims made by him upon the trial.

To determine whether or not the ruling of the court was correct, we must first ascertain the proper application of the statute of limitations, which provides that "no suit for any forfeiture upon any penal statute shall be brought but within one year after the commission of the offense." Gen. St. § 1379. In order to apply the statute, we must, of course, determine when it begins to run, and to this end we must have a clear conception of what constitutes the complete offense, and when the statute regards it as committed. The plaintiffs would take no notice of each month's neglect, except for the single purpose of computing the amount. The argument is that the offense commenced when the neglect commenced, and ended when the neglect ended. The idea, logically applied, would seem to render it impossible to make one liable for any continuous neglect till the neglect had ceased; that is, the offense against the law is not complete till the law has been finally complied with. So that perpetual disobedience to the law would confer perpetual exemption from its penalties. This absurd result the counsel for the plaintiffs would, of course, disclaim; but in order to do so successfully, in our judgment, they would have to admit that the offense may be complete by a mere neglect for the prescribed statutory period. And in this connection we may remark that one of the corresponding claims and defenses in behalf of the defendant is equally unsound, namely, that the filing of the certificate before the action was commenced is a bar to any recovery; that it atones for all past neglect, and wipes out the accumulated penalties for the 66 months of continuous neglect. This proposition is sufficiently refuted by its mere statement. Again, the plaintiffs support their position by the citation of several authorities that hold that where a statute imposes some specific duty, and provides a forfeiture for each week, month, or year of neglect, and suit is brought after a continuous neglect for a number of such prescribed periods of time, the whole aggregate of forfeitures may be recovered in one count, for the alleged reason that there is but one forfeiture measured by the lapse of time. We do not doubt that this is now a well-established rule, although opposed to the early cases in this state of Chapman v. Chapman, 1 Root, 52, and Barber v. Eno, 2 Boot, 150, which held that only one penalty could be sued for and recovered at a time; but the later case of Barkhamsted v. Parsons, 3 Conn. 1, in the principles which it approves, seems to have put our laws in harmony with that of most other jurisdictions on this subject. The argument derived from the authorities cited for the plaintiffs is founded upon the reason given, namely, that all may be included in one count, because there is really but one forfeiture. But the aggregated forfeitures may well be regarded as one, for the purpose of...