134 A. 787 | Conn. | 1926
As appears from the record, this case must be dealt with in the light of the finding and rulings made in the case of Lomas Nettleton Co. v.Isacs,
The plaintiffs claim that, under the facts, they are entitled to recover as the sum due in this foreclosure action as liens superior to the mortgage lien of Herman *175 Isacs, their mortgage indebtedness of $4,100, with interest and their advancements to the holder of the first mortgage as set forth above of $2,492.87, and $2,230.67 less such sums as they have received in part payment of the mortgage indebtedness due them. The trial court allowed such advancements and found that the balance due them is $4,967.71.
The defendant Isacs claims that the court erred, in whole or in part, in allowing these advancements to be made a part of the sum awarded the plaintiffs in the foreclosure judgment.
It is to be noted that there is no attempt made to correct the finding. All claims made therefore must rest upon the finding as made.
The first ground of error is that the court erred in holding "that the acceptance by the plaintiffs of the quitclaim deed from Christianson and Krentzman on May 20th, 1924, did not constitute a merger of any mortgage title or interest of the plaintiffs in the fee of the land in question." The facts found show that there was no intention to cause a merger and that it would have been prejudicial to the rights of the plaintiffs under the mortgage to have made it. Under these conditions the ruling was clearly in accord with our settled law. Goodwin v. Keney,
The second ground of error is that the court erred in adding to the principal of the plaintiffs' mortgage the $2,230.67 advanced by them on December 4th, 1922, when the first quitclaim of the premises was made to them by Christianson and Krentzman. The court found that the plaintiffs paid this sum to protect their mortgage indebtedness, by paying insurance, taxes, arrears of interest and a payment of $500 on the principal of the first mortgage debt. These payments were obviously for the benefit of Isacs as well as the Beaches. *176 Unless the plaintiffs were permitted to add these payments to the principal of their mortgage, Isacs would obtain an unconscionable advantage over them. The payment of $500 on the first mortgage debt, which is found to have been paid for the same purpose and result by the Beaches, while not directly covered by the statute is properly found to be a payment which equitably should be deemed a part of the mortgage debt under the finding.
An action of foreclosure is peculiarly an equitable action. In Wiltsie on Mortgage Foreclosure, Vol. 1, § 489, the province of the court in such an action is thus spoken of: "The court may entertain questions which are necessary to be determined in order that complete justice may be done between the parties whose rights in the equity of redemption are to be barred by the decree of foreclosure."
A payment by one of several junior incumbrancers of an instalment due on a prior mortgage would necessarily benefit all junior incumbrancers, and "in order that complete justice may be done between the parties whose rights are to be barred by the decree of foreclosure," such payment by the second mortgagee must equitably be deemed as a part of his mortgage debt upon his foreclosure of his mortgage; the third mortgagee would be amply protected in the privilege to redeem which would be allowed him in the judgment.
The terms of the statute, General Statutes, § 5195, if held to prohibit the application of such principles of equity as are universally applied in determining what advancements by a junior mortgagee may be equitably recovered as a part of the junior mortgage upon its foreclosure, would produce inequitable results, while the purpose of the Act is to further, not to hinder, the doing of equity. See generally, 2 Jones on Mortgages (7th Ed.) p. 683, § 1080. *177
The danger to be avoided is to prevent a still later mortgage or lien on the same property from being subjected to an inequitable burden.
In the fourth ground of error, the defendant claims, in substance, that the trial court erred in the allowance, as advancements recoverable under the foreclosure of the mortgage, of the necessary payment to the Lomas and Nettleton Company by the Beaches of $42.33 costs in the Company's foreclosure action, and also the payment of $43 for an appraisal necessary in order to secure the insurance of $12,000. These payments were as beneficial to Isacs as to the plaintiffs, and it was entirely equitable that the plaintiffs should make them. They were therefore proper advancements and fairly within the equities of the statute.
There is no error.
In this opinion the other judges concurred.