Zandri v. Tendler
| Decision Date | 01 July 1937 |
| Court | Connecticut Supreme Court |
| Parties | ZANDRI v. TENDLER et al. |
123 Conn. 117
ZANDRI
v.
TENDLER et al.
Supreme Court of Errors of Connecticut
July 1, 1937.
Appeal from Superior Court, New Haven County; Arthur F. Ells and Carl Foster, Judges.
Action to foreclose a mortgage by Virginia Zandri against Herman Tendler and others, brought to Superior Court. From a judgment for defendants after plaintiff's demurrer to special defense was overruled and issues were tried to the court, plaintiff appeals.
No error.
Argued before MALTBIE, C. J., and HINMAN, BANKS, AVERY, and BROWN, JJ.
Samuel M. Gordon of New Haven, for appellant. A. S. Bordon, of Hartford, for appellee Home Owners' Loan Corporation. Nathan A. Resnik, of New Haven, A. A. Ribicoff, of Hartford, and F. G. Monahan, of New Haven, for appellees Tendlers.
MALTBIE, Chief Justice.
The controversy in this action concerns the right of the plaintiff to foreclose a mortgage upon certain land in New Haven. The mortgage had been originally executed by the defendant Herman Tendler to the plaintiff and another, but the latter subsequently assigned his interest in it to the plaintiff. The mortgage in terms gave, granted, bargained, sold, and confirmed to the mortgagees the land, describing it by metes and bounds, and then, before the habendum clause, it recited that the property was subject to the right of an adjoining owner to have the eaves of a garage drip upon it, to certain restrictions of record and to a first mortgage to the Parker-Smith Company, trustee. It contained the usual covenants; that against incumbrances was limited by the words "except as aforesaid," but that of warranty was unrestricted.
Subsequent to the giving of this mortgage, the Second National Bank of New Haven, as trustee, became the owner of the Parker-Smith mortgage. It brought an action of foreclosure against several parties including the plaintiff and Tendler. A decree of foreclosure was granted, but none of the defendants redeemed. The bank did not pursue a claim for a deficiency judgment. It went into possession and on December 21, 1931, filed a certificate of foreclosure. Thereafter until May 25, 1934, it was in possession and control of the property, managing it and collecting the rents without objection from any one. Tendler with his family occupied an apartment in the building, paying rent to the bank. Some time prior to January 27, 1934, the bank suggested to him and his wife that they endeavor to secure the aid of the Home Owners' Loan Corporation to recover the property. Tendler did not desire a reconveyance, but his wife, the defendant Celia Tendler, did, and through an attorney she entered into negotiations with the corporation to bring that about. It was a rule of the corporation that it would only aid those who were or had been owners of the property involved and that all mortgages made to it by married persons must be executed by both husband and wife. Tendler, in order to assist his wife, signed an application to the corporation for aid and agreed to execute all necessary
documents. It was agreed between the bank, the corporation, Tendler, and his wife that the bank would quitclaim the property to Tendler; he and his wife would execute a mortgage to the corporation; it would thereupon pay in cash certain overdue taxes and the expenses of the transaction and would issue bonds which would be accepted by the bank in payment for the property; and that Tendler would immediately transfer the property to his wife.
On May 25, 1934, the agreement was consummated, the various steps being taken as nearly simultaneously as might be, and the documents were recorded at substantially the same time, the whole constituting one transaction. Subsequently the plaintiff in this action sued Tendler and his wife on the note secured by the mortgage the plaintiff is now seeking to foreclose, claiming that the conveyance to Mrs. Tendler was fraudulent, but the court, while giving judgment against Tendler on the note, held that the conveyance to his wife was not fraudulent and rendered judgment for her. The plaintiff has not been able to satisfy her debt from Tendler and so brought this action to foreclose the mortgage securing it. The question at issue is whether although the plaintiff was foreclosed in the action upon the first mortgage she can...
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