| Conn. | Jul 8, 1886
J. This is a suit to foreclose a mortgage upon certain property and a judgment lien upon certain other property. It appears that in 1875 the Naugatuck Wheel Company, a joint stock corporation, mortgaged to Ebenezer H. Ives two pieces of land in the town of Naugatuck to secure a note of $8,000; that only about $3,000 of the note has been paid; that the mortgagee has died and by his will given the note and mortgage to Fanny S. Gushee, one of the plaintiffs and wife of the other plaintiff; and that the mortgaged property has been conveyed to the Union Knife Company, the present defendant, which assumed and agreed to pay the mortgage debt. It further appears that the plaintiffs have brought an action against the Union Knife Company upon its promise to pay the mortgage debt, to recover the balance due on the note, and have attached five pieces of land belonging to the company, all in the town of Naugatuck, and obtained judgment against the company in the suit for $5,662, and that a certificate of a judgment lien upon the lands attached has been filed by them. And they now, by the present suit, seek a foreclosure of the mortgage and of the judgment lien.
The defendant in its answer admits all the allegations of the complaint, but asks for equitable relief on the ground that the original mortgage is more than sufficient to pay the remainder of the mortgage debt, and that it would be inequitable that the property covered by the judgment lien should be taken for the debt when it is fully paid by the mortgaged property; and the defendant prays that the latter property may be appraised, and if on appraisal it shall be found of less value than the amount of the mortgage
The plaintiffs demurred to this answer, and the court sustained the demurrer, and no other plea being filed, passed a general decree of foreclosure, covering all the property. From this decree the defendant has appealed.
The statute under which the judgment lien was obtained by the plaintiffs (Acts of 1878, ch. 68,) is a recent one, and few questions have yet arisen as to its operation and effect. The question here raised has never before been presented to this court, but we know of no principle or practice in analogous cases which will sustain the claim of the defendant. The plaintiffs have obtained a legal right to the full security which they hold, and they are entitled to hold it till their debt is paid. The only remedy of the defendant is to pay the debt and thus redeem the property.
The statute (Acts of 1878, ch. 129, sec. 2,) which has been cited by the defendant’s counsel as a ground for the granting of the equitable relief asked, has no proper application to the case, and can not, we think, by construction be so extended as to apply to it. That statute applies only to the case of a foreclosure which becomes absolute by a failure to redeem, in which case, if the property is insufficient to pay the debt, the court may appoint appraisers to ascertain its value, and in a suit afterwards brought on the note the excess of the debt above that value may be recovered, and only such excess. It was not intended to apply to the case of a judgment lien already obtained on the mortgage debt. The question here is wholly one of marshaling securities. The judgment lien stands on as legal ground as that of the mortgage, and there is no equitable rule by which we can give one an advantage over the other. If there is reason for limiting the rights of the creditor under the judgment lien, it should be done by legislation. As the statute now stands it provides that the judgment lien “may be foreclosed or redeemed in the same manner as mortgages upon the same estate.” Acts of 1878, eh. 58, sec. 5.
In this opinion the other judges concurred.
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