140 A. 204 | Conn. | 1928
This is an appeal from a judgment in foreclosure, wherein the trial court, having decreed a strict foreclosure, thereafter, on an application for a supplemental judgment, refused to award the plaintiff damages to which he claimed to be entitled by reason of a deficiency in the value of the mortgage security to satisfy the debt. Where a strict foreclosure has been decreed, the court is authorized by § 5197 of the General Statutes, upon motion of any party, to appoint three disinterested appraisers, who are to appraise the mortgaged property within ten days after the time limited for redemption has expired and make written report to the clerk of the court, and the court may, in a supplemental judgment in the same action, award to the plaintiff the difference between the value of the mortgaged property as fixed by such appraisal and the amount of his debt. Taking advantage of this statute, the plaintiff moved for the appointment of three appraisers and the court made the appointment. These appraisers were unable to agree, and two reports were made, one, signed by two of them, fixing the value of the mortgaged property as $8,000, and the other, signed by the third, fixing that value as $10,000. The trial court ruled that there was no appraisal filed which complied with the terms of the statute, and itself found the *274 value of the mortgaged property, fixing it as $10,000. As the debt due the plaintiff, with costs, amounted to $4,542.44, and there were prior incumbrances amounting to $5,310.46, making a total of $9,852.90, it refused to render judgment for the plaintiff to recover any deficiency.
The first statute in this State authorizing the rendering of a deficiency judgment in foreclosure provided that the value of the mortgaged property should be ascertained by the court. Public Acts of 1833, Chap. 18. The statute under which these proceedings were taken commits the function of determining that value to the appraisers appointed by the court and provides that their appraisal shall be final and conclusive. It is clear that they act in a quasi-judicial capacity. NorwichGas Electric Co. v. Norwich,
In the case of appraisers appointed for the purpose of the levy of an execution upon land, which is very closely analogous to the situation before us, we have held that their appointment is not to be regarded as a matter of contract between the parties; Strong v.Birchard,
These principles and considerations show that where three appraisers are appointed under the provisions of § 5197 of the General Statutes to value mortgaged property, if all consider together the appraisal to be made and two concur in a written report to the clerk, *276 the requirements of the statute have been met. The trial court should have accepted the appraisal signed by a majority of the appraisers in this case and rendered judgment for the plaintiff to recover the difference between the value of the mortgaged property secured by the foreclosure as so fixed and the amount of the debt.
There is error, the supplemental judgment is set aside and the cause remanded with direction to enter a supplemental judgment for the plaintiff in accordance with this opinion.
In this opinion the other judges concurred.