183 A. 744 | Conn. | 1936
The complaint alleged ownership by the plaintiff of a note dated April 15th, 1921, and a mortgage securing the same upon a tract of land in West Haven, one hundred and twenty feet front and ninety-five feet deep, and sought foreclosure of this mortgage. It was alleged, further, that one defendant, Benjamin Brown, is now the owner of the middle forty feet of that tract and the defendants Rossini own the remainder thereof. The defendant Brown filed an answer setting up that on July 13th, 1921, he was given a bond for a deed calling for a warranty deed of the parcel now owned by him and on November 30th, 1928, was given a quitclaim deed; that on October 30th, 1922, the defendants Rossini became the owners of the remainder of the mortgaged premises; that it was understood that the Rossinis were solely responsible for the mortgage, and that their property is of *216 value amply to satisfy it, and prayed that the Rossinis' land be applied to the satisfaction of the plaintiff's claim. The trial court found facts in accordance with Brown's allegations and rendered judgment of foreclosure as against the Rossinis and their land, only, and not against Brown or his land. From this the plaintiff appealed upon grounds which are hereinafter mentioned, claiming that the judgment should have run against Brown and his land, also. Further facts found by the trial court are stated in the course of the discussion.
In Markham v. Smith,
The defendant Brown is not deprived of the benefit of the rule by the fact that the deed which he ultimately received happens to have been a quitclaim instead of a warranty deed, free of incumbrances, as in other cases in which the rule has been applied. When the Rossinis became the owners of their land, in 1922, they had notice from the bond for a deed, given and *218 recorded in 1921, that Brown, upon payment of the instalments therein specified, was entitled to warranty deed and they by their deeds from the original mortgagors expressly assumed the payment of the debt secured by the mortgage now held by the plaintiff. Also, the trial court finds that it was always "understood by Brown and the parties other than he" that the mortgage was the sole responsibility of the Rossinis. The latter cannot complain of the imposition of that burden upon them and do not resist it by pleading or by appeal from the judgment foreclosing them of their parcel, to the exclusion of Brown's.
The plaintiff admitted, by one of its claims of law, that Brown, if he had sought and obtained an order for foreclosure by sale, would have been entitled to have the Rossinis' parcel sold first and that his own parcel be sold only if the proceeds of the sale of the Rossinis' property proved insufficient to satisfy the mortgage debt. No material distinction is discernible between such a procedure and the effect of the present judgment since the plaintiff obtains, even if the Rossinis do not redeem, full payment of the debt secured by its mortgage by appropriation of mortgaged property exceeding in value the amount of the debt. Desiderio v. Iadonisi,
The considerations last above mentioned go far toward meeting the further claim of the appellant that exoneration of Brown's parcel from the burden of the mortgage amounts to a taking of plaintiff's property without compensation and without due process of law, and an impairment of contract obligations, in violation *219
of the plaintiff's constitutional rights. Inherent in a mortgage is the right of the mortgagee to insist upon full payment before giving up his security, but that right is not impaired if the relief afforded accords him full compensation of his mortgage debt. Louisville Joint Stock Land Bank v. Radford,
While commonly in foreclosure proceedings ascertainment of value of the mortgaged property is for the purpose of setting a law day for redemption it is not, as the appellant contends, necessarily confined to that purpose; where there is involved apportionment of the debt among grantees, subsequent to the mortgage, of parcels of the property covered, in accordance with their respective values, or, as here, a claim that foreclosure be in inverse order of alienation, determination of values of the several parcels is, obviously and properly, for that purpose as well. Markham v. Smith, supra, pp. 358, 366.
The facts here appear to present a relatively simple and typical illustration of the equitable considerations which have caused the rule applied to be utilized in all but three of the states and in England, and of the just and reasonable results of its application, not only in foreclosures by sale but also in cases of strict foreclosure where the situation is appropriate thereto, as in the present instance.
There is no error.
In this opinion the other judges concurred.