129 A. 854 | Conn. | 1925
One Mushlin gave Morris Schupack a note and, to secure it, a third mortgage upon certain premises in Hartford. On the same day Schupack indorsed the note and assigned the mortgage to the plaintiff. Schupack died, and, the note coming due, plaintiff's attorney in his behalf filed with the administrators of the estate a claim for the amount due upon it. Thereafter the plaintiff began foreclosure proceedings, making the administrators parties defendant, and asking, in addition to the usual prayers for relief in such an action, a deficiency judgment against them. Judgment of foreclosure was finally directed. Then followed a series of motions to open the judgment and extend the time set in it for redemption, orders and in one instance a stipulation of the parties to that effect, and finally another judgment fixing the law-day for the parties entitled to redeem. The plaintiff made a motion for the appointment of appraisers in order to lay a basis for a deficiency judgment, but they were not appointed, and so, of course, could not file their appraisal, within ten days from the expiration of the time limited for redemption, as required by the statute. General Statutes, § 5197. Thereafter further attempts were made by the plaintiff to have the judgment reopened, to enable him to take the necessary steps to secure such a judgment, but the court refused to grant that relief upon the ground that its power to do so had been lost by the expiration of the term at which the final judgment of foreclosure was entered and the subsequent expiration of the time limited for redemption and of the additional ten-day period without proper steps being taken for securing the deficiency judgment. The plaintiff filed a certificate of foreclosure based upon his judgment, but he has never been in possession of the premises, because a receiver appointed in a suit to foreclose a second mortgage upon *647 the premises has been in charge of them. That suit, as well as one to foreclose the first mortgage on the premises, was pending when the action now before us was brought. The plaintiff is here seeking a judgment against the administrators of the Schupack estate for the amount due upon the note and, the estate having been distributed, Schupack's heirs and distributes have also been made parties defendant that any judgment recovered may be enforced against them.
The administrators claim that the plaintiff is debarred from prosecuting his present action by reason of his attempts to secure a deficiency judgment against them in the foreclosure proceeding. Our decision inGerman v. Gallo,
The plaintiff, subject to the provisions of General Statutes, § 5196, had a right to pursue an action to foreclose the mortgage and one upon the note either contemporaneously or successively until his debt was satisfied; Staples v. Hendrick,
The administrators insist that the present action is, and is recognized by the plaintiff's attorneys as, but an attempt to recover a deficiency judgment, and so must fail, because the statutory steps to such a judgment have not been taken and because the claim presented against the Schupack estate, which sought payment of the amount due upon the note, will not support a recovery for such an amount as might be found *650 due upon a deficiency judgment. The plaintiff, as already pointed out, is not here seeking a deficiency judgment as that term is used in the statute, but is pursuing a remedy upon the note, concurrent with that given him by the statute in the foreclosure proceeding, and his judgment is based directly upon Schupack's indorsement of that note, as was the claim filed with the administrators. If the plaintiff has a right to recover, that counsel miscalled it would be of no consequence.
Where an action is brought upon a claim against an estate after it has been fully distributed, our decisions abundantly sustain the practice of joining in it as codefendants with the representatives of the estate the heirs and distributes among whom the property has been divided, that the claim may be established against the estate and restitution, to the amount necessary to satisfy it, may be enforced against the latter. Stateex rel. McClure v. Northrop,
In Mathewson v. Wakelee,
There is error in part and the judgment is set aside and the cause remanded for a hearing as to the judgment to be entered against the several distributees in accordance with this opinion.
In this opinion the other judges concurred.