New Haven Pipe Co. v. Work

44 Conn. 230 | Conn. | 1876

Pardee, J.

Upon the facts as found in this case the defendant has failed to establish any right to the set-off claimed. The equity of redemption in the land in question passed from him to Tully, and from the latter to Tanner, and was the consideration upon which they entered into their respective agreements. Previous to the commencement of this suit the second mortgagee took this equitable right from both of them by the process of foreclosure, and after the title had become absolute in him he transferred it to the defendant, who now holds it. By statute (Gen. Statutes, tit. 18, chap. 7, sec. 2,) the foreclosure of a mortgage does not preclude the mortgage creditor from recovering so much of the claim to secure which the mortgage was given, as the property mortgaged, estimated at the expiration of the time limited for redemption, shall be insufficient in value to satisfy. And where the value of the property mortgaged exceeds the mortgage debt, a foreclosure of that mortgage having become absolute operates even at law as a payment of the debt. Bassett v. Mason, 18 Conn., 131. After the defendant had thus taken to himself Ensign’s interest by payment and the title of the second mortgagee by purchase, and held them against both Tully and Tanner, as between him and them, under the circumstances of this case, he is to be considered as having appropriated the land, the primary fund, to the payment of the notes which they had respectively promised to pay; and it still remains an open question, only to be closed upon judicial inquiry, whether the value of the land thus taken and held was sufficient for the discharge of the aggregate indebtedness upon it. It may have saved the defendant from the loss from which Tully agreed to protect him; may have paid the note which Tully agreed to pay; and he may have been entitled to no more than nominal damages by reason of Tully’s default. In the absence of any proof upon this point the defendant failed to establish his damages at any certain or definite sum, and left the court without data for determining them. Of course no claim for set-off can be made to rest upon such uncertainties.

This view of the case renders unnecessary any consideration of other questions presented.

There is no error in the judgment complained of.

In this opinion the other judges concurred.