23 Conn. 592 | Conn. | 1855
It has been repeatedly holdenby this court, that, upon a bill for a foreclosure, if it appear that the plaintiff, by virtue of the mortgage deed, acquired any estate whatever, which is still subsisting, he is entitled to a decree of foreclosure, and the court, in such a suit, will not ordinarily go into an enquiry, as to the quantity of the estate mortgaged. Williams v. Robinson, 16 Conn. R., 522. Wooden v. Haviland, 18 Conn. R., 107.
And we see no reason for departing from that rule in the present case. It is admitted that, by the mortgage deed, a valid title passed, as to all the mortgaged premises, with the exception of the twenty-acre tract, and that so far, the plaintiffs are entitled to a decree.
We therefore see no difficulty in passing a decree, that, .unless the defendant shall pay to the plaintiffs all that shall be found due to them upon the mortgage, he shall be foreclosed of all right to redeem the property conveyed by the mortgage. This will leave parties at liberty to contest the title to the twenty-acre tract, in an action at law, the legitimate mode of determining the validity of that title.
The case might be different, had no other lands been mortgaged than the twenty-acre tract. In that case, it might be proper to enquire, whether any interest passed by the deed, that the court might see, whether, in passing a decree, they were not doing a nugatory act. But even in such case, proceedings might be stayed, until the title was established, in an action at law.
But in the present case, there is no such danger.' It is admitted that the plaintiffs are entitled to a decree, and the only question is, as to the extent of that decree, and we see no difficulty in passing it in the- form we have stated.
If no title to the twenty-acre tract was conveyed by the deed of mortgage, then the plaintiffs can sustain no action for the possession of it, and the defendant will sustain no injury by the decree. On the other hand, if a good title passed, then the defendant ought to redeem, or be foreclosed.
For these reasons, we forbear entering upon the enquiry, relating to the validity of the plaintiffs’ title to the twenty-acre tract, leaving the parties, to settle that question, if they think proper, in another form of action, and advise the superior court to pass a decree, in the manner we have stated.
In this opinion, the other judges concurred.
Decree for plaintiff.
