177 A. 387 | Conn. | 1935
The plaintiff brought this action to foreclose a mortgage for $10,000, making the New Italian Co-operative Company, Incorporated, and the Workingmen's Investment Company defendants, among others, upon the ground that the owner of the equity had made a subsequent mortgage of the property for $2500 to the former and that this mortgage had been assigned to the latter. These defendants filed an answer and cross-complaint in which they alleged that the value of the property mortgaged with the improvements on it was about $25,000, and that it was capable of division without impairing its value; and they asked an apportionment of the mortgages upon the land and the limitation of the foreclosure of the plaintiff's mortgage to such portion as would be adequate to satisfy it, leaving the remainder subject to the defendants' mortgage, without obligation upon them to redeem the plaintiff's mortgage. To this answer and cross-complaint the plaintiff demurred and *453 the appeal raises solely the question of the correctness of the ruling of the trial court sustaining this demurrer.
In the situation disclosed by the record the doctrine of marshaling securities has, of course, no application. "As a general rule, however, before a court of equity will marshal securities between two persons, it must appear (1) that they are creditors of the same debtor, (2) that there are two funds belonging to that debtor, and (3) that one of them alone has the right to resort to both funds." Quinnipiac Brewing Co. v. Fitzgibbons,
In Spencer v. Waterman,
The remedy of the second mortgagee in such a case as this, if he cannot or does not wish to redeem, is by application for an order of sale under the statutes; General Statutes, § 5112, et seq.; and we have suggested that one purpose of this statutory remedy was to meet just such a situation as is here present.Staples v. Hendrick, supra. It is true that the grant of such an application rests in the sound discretion of the court; Bradford Realty Corporation v. Beetz,
There is no error.
In this opinion the other judges concurred.