New Haven Savings Bank & Building Ass'n v. McPartlan, 40 Conn. 90

New Haven Savings Bank & Building Ass'n v. McPartlan

40 Conn. 90 | Conn. | 1873

Seymour, J.

The facts upon which the questions in this case depend, appear distinctly in the finding by the Superior Court. It is clear that the legal title in the demanded premises was vested in the ^ plaintiffs by the mortgage deed to them -from Mr. Booth in January, 1855, and the point for our consideration is whether the plaintiffs have been divested by transfer or otherwise of this legal title. The Superior Court directly finds that the mortgage has never *95been redeemed or foreclosed. In January, 1857, Booth it is found quit-claimed the premises to the plaintiffs, but he had already conveyed them by warranty deed to Morrissey, who was in possession claiming title. Whatever difficulty there is in the case arises out of the quit-claim from the plaintiffs to McGarvey on the 30th of March, 1858, who then,.as it is found, “ in consideration therefor, paid the plaintiffs the mortgage debt due to them from Booth, but took no assignment otherwise from the plaintiffs of the mortgage.”

The defendant earnestly insists that by this transaction the plaintiffs’ legal title was either extinguished, or, if not extinguished, that it was transferred to McGarvey, so that the action should be by him and not by the plaintiffs. And first, as to the last named point, the record says it was admitted that at the time of the conveyance by the plaintiffs to McGarvey, “the plaintiffs were ousted of the possession of the premises and that consequently the deed was a void conveyance of the title under the statute.” This admission seems to dispose of the question whether the legal title was transferred to McGarvey. If the conveyance to him was “a void conveyance of the title,” then it is no conveyance, and the legal title still remains, that deed notwithstanding, in the plaintiffs. It is certainly true, as the defendant before us justly urged, that the possession of the mortgagor or his assigns is not regarded as in general an'ouster of the mortgagee, so as to prevent the mortgagee from assigning his mortgage security and with it his mortgage debt. But here the ouster is admitted, and the fatal consequence of the ouster upon the supposed conveyance is also distinctly admitted upon the record.

The defendant still insists that by payment of the mortgage debt McGarvey stands himself as mortgagee; and so indeed he does stand in a court of equity; and the whole effect of the payment is that, under the circumstances disclosed in the record, it operated as an equitable transfer of the title to McGarvey. Had it not been, for the adverse possession the legal title would also have passed to him with the equitable by the deed from the plaintiffs. The legal title to *96the land is not transferred by mere payment of the mortgage debt; nor was the mortgage title extinguished by the payment in this case. Payment by the mortgagor or by his assigns according to the tenor of the condition of the mortgage deed, does indeed extinguish the mortgage title, but payment of the amount of the debt made by McGarvey to protect his interest under an unrecorded deed, does not necessarily and-as matter of law divest the mortgagee’s title. The Superior Court expressly finds that the mortgage was never redeemed. A transfer and not an extinguishment of the mortgage was evidently intended.

The defendant further contends that the plaintiffs cannot maintain ejectment, because, in the first place, the mortgagee can maintain that action only as a means to obtain payment, and the plaintiffs have been paid. But the debt is not paid. The Superior Court finds as a fact that the mortgage has never been redeemed. As before suggested, McGarvey is now the equitable owner of the mortgage debt. It is found that the action is brought for his benefit. The plaintiffs are maintaining this action to compel payment of the debt to him as their, equitable assignee.

The defendant argues, in the second place, that the plaintiffs must fail for want of demand and notice. We regard , this point as fully settled to the contrary in Connecticut. Rockwell v. Bradley, 2 Conn. R., 1. Whatever doubts there may be as to the original correctness of our rule, it has become a settled rule of practice from which we are not at liberty to depart.

There is no error in the judgment complained of.

In this opinion the other judges concurred.