92 A. 877 | Conn. | 1915
The plaintiff asks for the foreclosure, by sale or strict foreclosure, of a mortgage given to him by one Allison, and for a deficiency judgment for the difference between the mortgage debt and the value of the mortgaged property as fixed by appraisal or sale, if the value as thus ascertained is insufficient to satisfy the debt. Allison is not a party to the action, which is brought against the defendant alone, it being alleged in the complaint that, on the same day that the mortgage was given, Allison, by his warranty deed of that date, conveyed the mortgaged premises to the defendant, and that by the express terms of the deed the defendant assumed and agreed to pay the mortgage. The defendant in his answer admits that the alleged deed was delivered to him by Allison, but alleges that at the time it was delivered the name of the grantee had not been inserted, that it was delivered to him as a gift of the equity of redemption, that nothing was said between him and Allison about his assuming the mortgage debt, and that he made no agreement at any time to assume the debt, and had no knowledge that the deed contained terms imposing upon him the assumption *68 and payment of it until this action was commenced. These allegations, which are contained in the second defense, are denied in the reply.
Upon the trial the defendant admitted that the plaintiff was entitled to a foreclosure of his mortgage, but claimed that he was not entitled to a finding that the defendant had assumed the mortgage debt, and that the judgment should not be for a foreclosure by sale, but for a strict foreclosure of the mortgage. The court rendered judgment for a foreclosure by sale, the judgment-file containing a general finding of the issues for the plaintiff. As the question of the assumption of the mortgage debt by the defendant is distinctly raised by the pleadings, this judgment renders the defendant liable to a deficiency judgment, should the proceeds of the sale of the property be insufficient to satisfy the amount secured by the mortgage and the costs of the action, and the defendant is therefore aggrieved by the judgment, if it, or the findings therein recited, are erroneous. The judgment cannot affect Allison, who is not a party to the action, except that it will relieve him from liability to pay the mortgage debt to the plaintiff, if the latter secures it through the foreclosure sale and a deficiency judgment for the balance against the defendant.
It appears from the finding that, as alleged in the answer, no grantee was named in the deed from Allison to the defendant at the time that it was delivered to him; but the court has also found that the defendant's name, by his direction, was inserted in the deed as grantee after its delivery to him, and was then by him caused to be forwarded to the town clerk of Milford for record. It has not been claimed before us, and the record does not show that it was claimed in the trial court, that the deed when thus completed and recorded did not constitute a valid conveyance of the equity of *69 redemption. We do not, therefore, stop to consider the effect of the delivery of the incomplete instrument in this respect.
The question chiefly argued before us was whether the court properly held that the defendant assumed and agreed to pay the mortgage debt, and the case turns upon the decision of that question. If he did assume it he is properly made liable for a deficiency judgment, and there is nothing in the record to show that the court improperly exercised its discretion in determining that the foreclosure should be by sale.
The deed from Allison to the defendant contains the assumption clause, as appears in the deed itself which is a part of the finding. We held in Raffel v. Clark,
The subsequent conduct of the defendant, from which the court draws its conclusion that the defendant was chargeable with knowledge at the time he accepted the deed, consisted in his having received $9.40 sent him by Allison, as promised when the deed was delivered, in payment of the accrued interest on the first mortgage on the property to April 1st, the day of the delivery of the deed, and in his having directed his stenographer to insert his name in the blank space left for the grantee's name in the deed and to send it to Milford for record. It appears from the deed, which is printed and written upon two pages, that the blank which was to be filled was upon the first page and the assumption clause was upon the second, so that the fact that the defendant then knew of the blank space in the deed does not show knowledge on his part that there was an assumption clause on the following page. These circumstances are as consistent with ignorance of the assumption clause as with knowledge of it. We see nothing in this conduct of the defendant which can charge him with knowledge of the recitals in the deed. We think that the court's conclusions (b) and (c) were erroneous, and that upon the evidence its finding (a) should be changed to a finding that the defendant had no knowledge of the existence of the assumption clause until this action was commenced. This correction *74
being made, the finding does not support the judgment. The case then falls within the rule laid down in Raffel
v. Clark,
There was error in finding that the defendant assumed and promised to pay the mortgage debts. The judgment is reversed and the case is remanded, and the Court of Common Pleas is directed to enter judgment for the defendant upon the question of his assumption of the mortgage debt, and in favor of the plaintiff for a foreclosure of the mortgage.
In this opinion the other judges concurred.