17 Conn. Supp. 254 | Conn. Super. Ct. | 1951
The plaintiff has demurred (1) to the defendant Hartenberg's special defense insofar as it purports to state a defense and claimed invalidity as to Hartenberg by reason of the alleged inaccuracy of the statement of the debt in the mortgage deed and (2) to the first count of said defendant's cross complaint, as against the plaintiff, seeking a declaratory judgment based on a similar reason.
The question presented is whether the plaintiff's mortgage is invalid as against the subsequent mortgage of the defendant Hartenberg, because plaintiff's deed did not include the provisions of a written amortization agreement relative to payments of principal on the mortgage note, which agreement was signed by the defendant Levy at the time the mortgage was given and as part of the transaction. *255
No claim has been made on the part of the defendant that a demurrer is not the proper method to raise and determine the instant question. It would appear that it is the proper method to determine said question. The mortgage deed, mortgage note and the amortization agreement filed in compliance with a motion for oyer and which are referred to in the pleadings to which the demurrer is addressed may be considered with the other facts proper to consider under a demurrer. Lampson LumberCo. v. Chiarelli,
The following facts applicable to the question appear. On September 6, 1946, the defendant Joseph L. Levy owed the plaintiff the sum of $25,000 as evidenced by his promissory note of that date. The note was payable: "On demand, ... with interest at the rate of five per cent per annum payable semi-annually in advance on the first days of January and July in each year, together with all costs of collection including a reasonable attorney's fee." This note, which was recited in full in the deed, was secured by a mortgage deed of the same date, and which deed was recorded on September 7, 1946, in Shelton Land Records where the property was located.
At the time of the above transaction (although the agreement on file does not disclose the date) the plaintiff requested of the defendant Levy in writing in part as follows:
"While it has been customary in this locality for Banks to allow demand first mortgages to stand for an indefinite period without reduction, we wish it distinctly understood that we shall require semi-annual payments upon the principal.
"Until and unless we advise you otherwise the payments required on the principal of this loan will be as follows: Payment of Six Hundred Twenty-five (625) Dollars on July 1, 1947, on the principal of said loan and every six months thereafter, with interest on all unpaid balances at the rate of five per centum (5%) per annum, payable semi-annually in advance on the first days of January and July in each year."
In response thereto and as part of the same agreement the defendant stated in writing signed by him as follows: *256
"I hereby accept the loan of TWENTY-FIVE THOUSAND (25,000) DOLLARS on my property located on Ripton Road, Shelton, Connecticut, with the understanding that minimum payments will be required as above stated, without prejudice to your right to demand payment in full at any time in accordance with the tenor of said note."
This agreement was not recited in the mortgage deed. The defendant Levy executed a mortgage deed to the defendant Hartenberg dated July 2, 1948, covering the same property, which deed was recorded in Shelton Land Records on July 21, 1948.
On August 18, 1950, the plaintiff commenced this foreclosure action against eight defendants, including the defendant Hartenberg, to foreclose its said mortgage. On October 13, 1950, all of the defendants having appeared, the court defaulted them for failure to disclose defenses and entered judgment of foreclosure. The total debt was found to be $23,208.17, which included principal on the note then reduced to $21,875. On January 19, 1951, upon stipulation of the parties, the judgment of foreclosure as to defendant Hartenberg was opened. On May 18, 1951, defendant Hartenberg filed his answer, special defense and cross complaint to which special defense and cross complaint the instant demurrer is addressed.
"The rule uniformly held in this jurisdiction and elsewhere is, that the mortgage deed should show by its record the real nature of the debt or transaction involved so far as it can be disclosed, and enable a creditor or other person interested to determine the real facts, or at least suggest some means of determination.... `What is reasonable notice, in certain cases, has been a question. Certain points, however, we think, are settled: that if a mortgage is given to secure an ascertained debt, the amount of that debt ought to be stated: that if it is intended to secure a debt not ascertained, such data must be given respecting that debt as will put any one interested in the inquiry, upon the track leading to a discovery: and if given to secure an existing or future liability, the foundation of such liability must be set forth.'" Lampson Lumber Co. v. Chiarelli, supra, 306.
In the instant case the mortgage is given to secure an ascertained debt and the amount of the debt is stated in the mortgage deed by the recital of the note therein. The note was recited with reasonable certainty. Even if it were to be said that the *257
principal of the note became unascertainable by reason of amortization the amount actually due at any time could have been easily obtained by the defendant from the plaintiff. See FirstNational Bank v. National Grain Corporation,
The court in Winchell v. Coney,
The defendant in his brief has cited a number of cases, which the court will now briefly discuss, which he claims sustains his contention. While these cases cite the general rule as set forth above in the Lampson Lumber Co. v. Chiarelli case, yet an examination of the cases discloses their respective facts to be much different from the instant case.
In Pettibone v. Griswold,
In Hart v. Chalker,
In Shepard v. Shepard,
The defendant cites at some length from the case of Stein
v. Davidson,
The defendant also relies to a great extent in his brief and also in oral argument on the recent case of Andrews v. ConnecticutProperties, Inc.,
The note recited in the plaintiff's mortgage deed showed the amount of indebtedness and that it was payable on demand and further showed the rate of interest and when it was payable. The amortization agreement did not change this. There was no fraudulent attempt to conceal and no chance to substitute another or greater debt for the one shown. The nature of the transaction was stated with reasonable accuracy. No prejudice or injury could come to this defendant Hartenberg by reason of *259 the mortgage debt being reduced by amortization payments. The amount of principal and interest could have been readily ascertained at any time upon inquiry of the plaintiff.
For the reasons given herein, the plaintiff's demurrer ought to be sustained.
The demurrer is sustained as to the special defense and the first count of the cross complaint on the grounds stated in the demurrer.