Wilcox v. Bliss

• Decision Date: 21 February 1933
• Citation: 164 A. 659,116 Conn. 329
• Court: Connecticut Supreme Court
• Parties: WILCOX et al. v. BLISS et al.

164 A. 659

116 Conn. 329

WILCOX et al. v. BLISS et al.

Supreme Court of Errors of Connecticut.

February 21, 1933

Appeal from Superior Court, Hartford County; Arthur F. Ells, Judge.

Action by Alice L. Wilcox and others against Frederick J. Bliss and others to foreclose a real estate mortgage and for a deficiency judgment. From a supplementary judgment for a deficiency after judgment of strict foreclosure was rendered defendants appeal.

No error.

John C. Blackall, of Hartford, for appellants.

Arthur L. Shipman, Jr., of Hartford (Arthur L. Shipman, of Hartford on the brief), for appellees.

HINMAN, Justice.

The appeal relates only to the deficiency judgment. The action was brought to foreclose a mortgage on real estate in Hartford which, on November 15, 1928, had been sold by the plaintiffs to the defendants. The purchase price was $80,000 of which the defendants paid $16,000 in cash and assumed a first mortgage of $10,000. The balance was represented by a note of $54,000 secured by the mortgage sought to be foreclosed. Judgment of strict foreclosure fixing the amount of the debt at $56,939 was rendered May 27, 1932. This was followed by an application for a deficiency judgment, and appraisers were appointed and filed a report appraising the property at $65,000. From this sum the court deducted the amount of the first mortgage and interest, $10,450, and taxes amounting to $3,187.61, determined the deficiency to be $5,703.22, and rendered judgment accordingly.

The supplementary judgment was entered through the procedure prescribed by section 5083 of the General Statutes, which provides that: " Upon the motion of any party to a foreclosure, the court shall appoint three disinterested appraisers, who shall, under oath, within ten days after the time limited for redemption shall have expired, appraise the mortgaged property and shall make written report of their appraisal to the clerk of the court where such foreclosure was had. Such report shall be a part of the files of such foreclosure suit, and such appraisal shall be final and conclusive as to the value of such mortgaged property. The mortgage creditor, in any further action upon the mortgage debt, note or obligation, shall recover only the difference between the value of the mortgaged property as fixed by such appraisal and the amount of his claim; and the court in which such action shall be pending may, by its supplementary judgment, at any time within ninety days after the time limited for redemption has expired, if the appraisal and report thereof shall have been made, render judgment for the plaintiff for the difference between such appraisal and the plaintiff's claim."

Prior to 1833 the foreclosure of a mortgage operated to bar any subsequent action upon the mortgage debt. Since that time successive statutes have recognized and effectuated a right in a mortgagee to a judgment for the deficiency when the value of the property acquired on foreclosure proves insufficient to satisfy in full the mortgage debt. General Statutes 1835, title 31, chap. 4; Public Acts 1878, chap. 129; General Statutes 1888, § § 3010, 3011; General Statutes 1902, § § 4123, 4124; General Statutes 1930, § § 5080, 5083; Ansonia Bank's Appeal, 58 Conn. 257, 18 A. 1030, 20 A. 394; Bergin v. Robbins, 109 Conn. 329, 333, 146 A. 724. Since 1878 this right has been conditioned upon the making of the person or persons liable for the payment of the deficiency parties to the foreclosure suit. General Statutes, § 5080.

On the trial and here the appellants claimed that section 5083, although general in its terms, was not intended to and does not apply to foreclosure of a purchase-money mortgage. We find nothing in the language of the statute, in its legislative history, or in the considerations which led to its adoption, to permit a construction excepting this class of mortgages from its operation. Such an exception would be unusual, but where intended may readily be provided for, as illustrated by the Oregon statute, quoted in Page v. Ford, 65 Or. 450, 131 P. 1013, 45 L.R.A. (N. S.) 247, Ann.Cas. 1915A, 1048. See, also, Thompson v. West, 59 Neb. 677, 82 N.W. 13, 49 L.R.A. 337.

It is urged that, if the statute be construed as including purchase-money mortgages, its operation as applied to the facts in the instant case is inequitable in that the plaintiffs, in addition to receiving $16,000 in cash upon the sale in 1928 and regaining the property by foreclosure obtain further payment under the deficiency judgment. The plaintiffs point out that it appears from the finding that the defendants were...