219 Conn. 810 | Conn. | 1991
Lead Opinion
The principal issue in this appeal is whether, under General Statutes § 52-285,
The relevant facts are undisputed. The foreclosure proceedings initiated by the plaintiff generated the sum of $16,270.31 to be disbursed following payment of the named defendant’s debt to the plaintiff. The Money Store relied on its recorded mortgage deed for its claim to the remaining sale proceeds, while Lyon & Billard relied on its attachment and the subsequent judgment lien relating back to the attachment for its claim of priority.
The parties perfected their respective liens in the following sequence. Lyon & Billard’s prejudgment remedy attachment order was signed by a judge on April 21, 1988, and delivered to a sheriff on April 28, 1988. The Money Store’s mortgage was executed on April 29, 1988. Lyon & Billard’s certificate of attachment was recorded on the East Hampton land records on May 2,1988.
The trial court accepted Lyon & Billard’s contention that an attaching creditor’s rights accrue upon a judge’s signing of an attachment, and therefore did not consider Lyon & Billard’s alternate claim that its rights accrued upon delivery of the writ of attachment to the sheriff. In an articulation of its supplemental judgment, the court stated that attachments accrue “from the date a Judge signs the prejudgment remedy, provided the attaching creditor delivers it to the sheriff within a reasonable time and the sheriff records and serves within a reasonable time.” The court found that Lyon
On appeal, the Money Store renews its claim that an attachment lien does not accrue, at least as against innocent third party claimants, until the lien is recorded upon the land records. If we agree with this contention, the Money Store urges us also to resolve in its favor the question of the timeliness of its recording of its mortgage deed. We agree with the Money Store’s first claim, but remand the case for an evidentiary hearing to determine whether the Money Store recorded its mortgage within a reasonable time.
I
The right to attach property is purely statutory. Connecticut v. Doehr, U.S. , 111 S. Ct. 2105, 2115, 115 L. Ed. 2d 1 (1991). General Statutes § 52-285 identifies the requirements for attaching real property in this state and is controlling on the issue of when an attachment begins to accrue. That statute provides in rele
The text of § 52-285 is silent on whether an attachment recorded within a reasonable time of its execution relates back to that earlier date as the effective date of its accrual. This court has never considered whether the legislature impliedly incorporated a relation-back principle therein.
The Money Store urges us not to interpolate a provision for pre-recordation accrual into § 52-285. It relies on our oft-stated rule that, absent statutory ambiguity, we ordinarily assume that we need not elaborate on the intention of the legislature because its intention is presumed to have been expressed in the words of the statute. Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991); Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978). “ ‘Where the language of the statute is clear and unambiguous, the courts cannot, by construction, read into statutes provisions which are
The Money Store’s contention that we should construe § 52-285 to preclude an accrual period for attachment liens finds support not only in the text of the statute but also in the established policy of protecting the integrity of our land records. Statutory requirements for the recording of certificates of attachment in the town clerk’s office, like other recording requirements, serve to protect bona fide purchasers and mortgagees from secret encumbrances on real property. Allowing relation back to some time prior to the moment of recording of an attachment would inevitably encroach upon the reliability of this system. No search of the record title, no matter how painstaking and accurate, could protect a potential purchaser or mortgagee from an attachment that had been issued, but not yet recorded. “The policy of [the recording] system, which is rigidly adhered to, requires that the record shall disclose, as nearly as may be, the true state of the title and the nature and extent of the incumbrance upon it.” Hubbell v. Kingman, supra, 20.
To counter these persuasive arguments for construction of § 52-285 to preclude an accrual period for attachment liens, Lyon & Billard urges us to look beyond the confines of that statute itself. Lyon & Billard maintains that § 52-285 should be interpreted to afford to judicial liens the same treatment as that afforded to recorded mortgage deeds pursuant to General Statutes § 47-10
Our recordation statute, now § 47-10, has consistently been interpreted as providing for a reasonable period within which to record a deed of conveyance. That construction finds support in its provision that no conveyance can be effective against subsequent innocent parties “unless recorded on the records of the town in which the land lies.” (Emphasis added.) Id.
Because the wording of § 47-10 has remained in essentially the same form since the 1800s, we may presume legislative acquiescence in our interpretation of the mortgage lien statute. “[I]ts subsequent nonaction may be understood as a validation of that interpretation.” Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). In contrast, no cases have interpreted § 52-285 as providing a reasonable time within which to record an attachment.
The mechanic’s lien statute offers an even less compelling analogy for the construction of § 52-285. Although General Statutes § 49-34 allows a mechanic’s lienor a ninety day grace period
Despite the dearth of Connecticut support for its contention that judicial liens relate back to accrue prior to the moment of their recordation, Lyon & Billard urges us to consider analogous rules of law in other jurisdictions. Specifically, it calls to our attention Massachusetts General Laws, c. 223, § 66 (1985), which provides that an attachment will take effect from the time when it was made if a copy of the attachment order is recorded “within three days after the day when the attachment was made.” We find this reference unpersuasive for three reasons. First, the Massachusetts legislature expressly provided for an accrual period in its attachment statute, while, as previously noted, the Connecticut legislature did not. Second, the Massachusetts statute specifically states that an attachment is “made” at some earlier point in time, apparently upon the sheriff’s return, while § 52-285 provides that an attachment “shall be considered as made” when a certificate of attachment is left at the office of the town clerk where the property is located and not a moment earlier. Third, under chapter 223, § 66, an attachment takes effect within three days after the day the attachment is made “but attachments of land shall not be valid against purchasers in good faith and for value ‘except from the time when the copy is deposited [in the regis
We therefore conclude that, under § 52-285, an attachment that is subsequently transformed into a judicial lien following a judgment on the underlying cause of action relates back, for purposes of determining priority, only to the moment, when the certificate of attachment is left at the town clerk’s office of the town where the property is located. Accordingly, Lyon & Billard’s attachment took effect on May 2,1988, and its judicial lien relates back to that date.
II
Disposition of the issue of the effective date of Lyon & Billard’s attachment does not suffice to establish the date when the Money Store’s mortgage became effective against third parties. As noted above, the trial court found that the Money Store’s mortgage was executed on April 29,1988, and recorded on May 4,1988, while Lyon & Billard’s attachment was lodged at the town clerk’s office on May 2, 1988. “[A] conveyance which is not recorded until after an attachment of the property conveyed is not good against the attaching creditor ... if the delay in recording was unreasonable and is unexplained. Pond v. Skidmore, 40 Conn. 213, 222 [1873]; Newtown Savings Bank v. Lawrence, 71 Conn. 358, 364, 41 Atl. 1054, 42 id. 225 [1898]. But
The Money Store acknowledges that it had the burden of proving that it recorded its mortgage deed within the reasonable time period required under § 47-10. It urges this court to hold that it satisfied this burden, as a matter of law, by recording on Wednesday, May 4, a mortgage deed, executed and delivered on Friday, April 29. Lyon & Billard contends, to the contrary, that the Money Store’s failure to present evidence on this issue before the trial court automatically vests priority in favor of Lyon & Billard. We are unpersuaded that the Money Store should be penalized for the trial court’s decision not to make a factual finding on the issue of reasonableness, when the record indicates that the Money Store apprised that court of the need for testimony in its motion for supplemental judgment.
Pond v. Skidmore, supra, makes it clear that an unexplained delay in recording is unreasonable. The Money Store offered the following explanation for its delayed
Numerous cases have addressed the issue of what constitutes a reasonable time period for recordation of a real property deed so as to give a mortgagee or purchaser priority over intervening lienholders. Short delays ranging from thirty-one hours; Goodsell v. Sullivan, supra, 85; to one day; Hartford Building & Loan Assn. v. Goldreyer, supra; or to two days; Apstein v. Sprow, supra, 424;
The question of whether the Money Store’s mortgage deed was recorded within a reasonable period of time
The judgment is reversed and the case is remanded to the trial court for an evidentiary hearing in accordance with this opinion.
In this opinion Callahan and Covello, Js., concurred.
“[General Statutes] Sec. 52-285. attachment of real estate. Real estate shall be attached by the officer by leaving in the office of the town clerk of the town in which it is situated a certificate that he has made such attachment, which shall be endorsed by the town clerk with a note of the precise time of its reception and recorded at length in the land records of such town; and such attachment, if completed as hereinafter provided, shall be considered as made when such certificate has been so lodged. The certificate shall be signed by such officer, shall describe the land attached with reasonable certainty and shall specify the parties to the suit, the authority issuing the writ, the court to which the process is returnable and the amount of damages claimed; and, unless the service is so completed, such estate shall not be held against any other creditor or bona fide purchaser. No such certificate left in the town clerk’s office for record shall have the effect of the notice of action pending provided for in section 52-325.”
The claims of the competing lienholders each exceed the moneys held on deposit by the court.
Lyon & Billard subsequently obtained a judgment on its separate action against Garofalo on May 15, 1989.
General Statutes § 52-380a (b) provides in relevant part: “From the time of the recording of the judgment lien certificate, the money judgment shall be a lien on the judgment debtor’s interest in the real property described. If, within four months of judgment, the lien is placed on real property which was previously attached in the action, the lien on that property shall hold from the date of attachment (Emphasis added.)
“[General Statutes] Sec. 47-10. deeds to be recorded. No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies. When a conveyance is executed by a power of attorney, the
General Statutes § 49-34 provides in relevant part: “certificate of LIEN TO BE RECORDED AND NOTICE GIVEN TO OWNER. . . . A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing . . . .”
General Statutes § 49-33 provides in relevant part: “mechanic’s LIEN. PRECEDENCE. RIGHTS OF SUBCONTRACTORS. . . .
“(b) The claim is a lien on the land, building and appurtenances or lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then on the plot of land and the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials . . . .”
A mortgage is considered a “conveyance” of land. Second National Bank v. Dyer, 121 Conn. 263, 267, 184 A. 386 (1936).
This is in contrast to many states that automatically give priority to the party that records first and without notice of a prior unrecorded conveyance or lien. See, e.g., Cal. Civ. Code § 1214 (Deering 1990); N.Y. Real Prop. Law § 291 (McKinney 1989).
A mechanic’s lienor has ninety days after the last services or materials have been furnished within which to lodge his claim at the town clerk’s office. General Statutes § 49-34 (1).
Such an accrual period for mechanic’s liens is also recognized in numerous other jurisdictions. See, e.g., Del. Code Ann. tit. 25, § 2718 (1989); Minn. Stat. Ann. § 514.05 (West 1990); Pa. Stat. Ann. tit. 49, § 1508 (Purdon 1973).
The Money Store’s motion for supplemental judgment apprised the trial court that testimony would be required. At oral argument before this court, counsel for the Money Store informed us that he told the trial judge at short calendar that he would provide additional testimony if the court considered it necessary. The trial court did not ask for further evidence, but decided the case “on the papers.”
Although the Money Store cites Apstein v. Sprow, 91 Conn. 421, 99 A. 1045 (1917), for the proposition that an eleven day delay has been called reasonable, the trial court therein determined that the relevant time period for prompt recordation dated not from the date of a deed’s execution but from the date of its delivery to the grantee. Thus the relevant time frame was the two days between delivery and recordation. Id., 424.
A procedural bulletin issued by the Connecticut Attorneys Title Insurance Company states that instruments should be recorded “immediately after delivery. Where unusual circumstances preclude same day recording, however, the . . . instruments should be recorded on the first business day following the date of the . . . transaction.” (Emphasis added.) It further warns that “[f]rom the foregoing it is obvious that members may not mail . . . instruments to the town clerks’ offices for recording.” (Emphasis added.)
Concurrence Opinion
joins, concurring. I agree wholly with Part I of the majority opinion, which holds that an attachment of real estate does not take effect until a certifícate of attachment has been filed in the land records, as provided by General Statutes § 52-285.1 also agree with the holding in Part II that the case must be remanded to the trial court for a determination of whether the delay in recording the Money Store’s mortgage deed was reasonable, because that factual issue must be decided by the trial court rather than by this court.