138 A. 157 | Conn. | 1927
The trial court found the following facts: The plaintiff conveyed to the defendant certain premises in New Haven subject to a mortgage of $2,000, which the defendant assumed and agreed to pay. As a part of the purchase price the defendant gave the plaintiff his note for $500, being the note in suit, which was secured by a second mortgage upon the premises conveyed. Thereafter the defendant conveyed the premises to one Kuziel, who assumed and agreed to pay the first mortgage of $2,000 and the second mortgage of $500, and in part payment gave the defendant a third mortgage of $800 upon the premises conveyed, which the defendant subsequently transferred to one Morris, and never thereafter had or acquired any title or interest in the premises. Subsequent to this conveyance, the house upon the premises was practically destroyed by fire. Kuziel, the owner of the equity, notified the defendant of that fact, that she had refused an offer of settlement of the fire loss, and that in consequence of the fire the first mortgagee had refused to accept payment of the interest then due on its mortgage, and had demanded the payment of the principal of the same. Thereafter, the first mortgagee, The American Bank and Trust Company, instituted foreclosure proceedings on its mortgage, making the plaintiff, Kuziel and Morris parties thereto, but not naming the defendant in this action as a party defendant. None of the parties redeeming, title to the premises *392 became absolute in The American Bank and Trust Company. Thereafter plaintiff brought this action upon defendant's note of $500, which was then due and payable.
The reasons of appeal raise but a single question, based upon defendant's claim that it was the duty of the plaintiff to notify him of the pending foreclosure, and that his failure to do so discharged defendant's obligation to pay his note. This question was determined adversely to defendant's contention in the case of Barnes v. Upham,
The transfer of the mortgaged property to a third person who assumed the mortgage debt did not affect the right of the plaintiff to pursue the personal remedy against the defendant by an action on the note.Barnes v. Upham, supra; 2 Jones on Mortgages (7th Ed.) § 1220.
There is no error.
In this opinion the other judges concurred.