Seymour v. Davis, 35 Conn. 264

Seymour v. Davis

35 Conn. 264 | Conn. | 1868

Carpenter, J.

We think under all the circumstances that the decree of the Superior Court should have been opened and the petitioner permitted to redeem. It seems that Ellis, being the owner of the whole property, mortgaged it to the Connecticut Mutual Life Insurance Company. He then sold one undivided half of his interest to the respondent Davis. Subsequently George S. and Charles L. Lincoln acquired a lien upon the whole property under the statute relating to mechanics’ liens. Ellis’s interest was then attached by Burnham. Subject to all these incumbrances Ellis mortgaged his half of the property to the New England Fire In*270surance Company. In this condition of affairs the Lincolns brought a petition to foreclose their lien. A decree was passed foreclosing Ellis, Dec. 24th, 1867, the New England Eire Insurance Company Dec. 31, 1867, and Burnham on the 7th day of January, 1868. In default of payment by all these, Davis, by the terms of the decree, was permitted to redeem not only his own moiety but also the other, in which he had no interest. As all the others failed to redeem, Davis redeemed the whole, and took from the Lincolns a quit-claim deed conveying the entire property, after they had filed a certificate that their title had become absolute as against Ellis, the Eire Insurance Company, and Burnham. It now appears that the whole property was worth much more than the incumbrances upon it; so that the effect of the decree was, not only to permit Davis to protect his own interest, but also to purchase the other moiety, after all subsequent incumbrances had been foreclosed, by paying the sum named in the decree, which was much less than the value of the property.

The object of a foreclosure proceeding is to compel the payment of the debt, by foreclosing the interest of the mortgagor or other owner of the equity of redemption if it is not paid ; but we are not aware of any equitable principle that will allow a stranger to redeem, and appropriate the equity of redemption, which may be of considerable value, as in this case, wholly to himself.

That portion of the property owned by Ellis seems to have been worth enough, over and above all prior incumbrances, to pay the present petitioner’s debt, which was over $1,000. The result of the proceeding is, that Davis protects his own interest, is reimbursed all that he expends, and makes a handsome profit besides; while the creditors of the New England Eire Insurance Company, without any fault on their part, (whatever may be said of the trustee,) meet with a corresponding loss. A court of equity will not knowingly aid in accomplishing such a result. The effect therefore of this decree, to that extent, seems to be inequitable.

It may be said however that Davis was not a stranger; *271that as he was the owner of one-half the equity of redemption, he had to redeem in order to protect himself. That is true ; but does it necessarily follow that by redeeming he is entitled to the whole property to the exclusion of his co tenant ? Suppose there had been no incumbrances subsequent to the Lincolns’ lien. Then, as Davis and Ellis would have been equally interested, I suppose the decree regularly would have run against them jointly; and both would have been foreclosed, if at all, at the same time. There could have been no foreclosure against one and not against the other; much less, could there have been a foreclosure of one for the benefit of the other. A redemption by one within the time limited would have enured to the benefit of the other so far as to save a forfeiture. The latter could be compelled to pay his proportion of the mortgage debt; and I think he would be permitted to do so and save his estate, even after the expiration of the time limited, especially if the equities of the case required it. Why does not the same principle apply to this case ? If Davis and Ellis were equally obligated to pay this claim as between themselves, then Ellis, or those entitled to his rights, ought to refund to Davis one-half the amount he was compelled to pay. If it was Ellis’s debt alone, then the whole amount should be reimbursed. In that way the rights of all concerned can be protected. We do not see that the Lincolns would suffer from such a course.. They get their debt in full; and that is all they desire or are entitled to. Davis cannot complain, as he pays no more than he ought to pay, and his interest in the property is fully protected.

Now, without intending to establish any law applicable to any ease but this and those similarly situated, we think this view of the case shows a strong equity in favor of the petitioner. Anything inequitable in the decree itself, or its results, may have an important bearing upon the question of opening the decree and extending the time for redemption. Bridgeport Savings Bank v. Eldredge, 28 Conn., 556.

But it is said there was negligence on the part of the trustee. Admit that; and yet we should not feel disposed to *272punish him, much less the creditors, when it appears that nobody was injured by it. But even if the trustee was the only party to be affected by it, we are by no means certain that there was that degree of negligence which ought to deprive him of relief. The case had gone into judgment when the estate came into his hands. His interest in the property arose from certain legal proceedings before the court of probate. He had not the same motive to examine its condition critically that a purchaser, or single creditor about to secure his debt by attachment, would have. While we would not excuse a trustee from using reasonable diligence, yet some allowance must be made in a case like this for an expectation on his part, that among so many persons interested in the estate, some of them at least would give him some information in respect to so important a transaction as a pending decree foreclosing a mortgage. That information he did not obtain ; and the case further finds that he was entirely ignorant of it until after the 8th of January. Doubtless those interested, and who would be most likely to impart such information, supposed that he knew it. And thus through inadvertence and mistake, rather than negligence, he failed to learn the facts.

Besides, he had frequent conversations with Davis in respect to the purchase of the property by the latter, from which he inferred and believed that Davis intended to purchase the property at a sum sufficient to pay all incumbrances thereon. Now the court has negated all fraud, actual or constructive, in Davis. Nevertheleless all the facts in the case tend strongly to show a mistake. The trustee had no knowledge in fact of this judgment; and the course pursued by Davis, (unintentionally as it appears,) had the effect to throw him off his guard. That he would have redeemed, had he known the facts, is manifest from the fact that, as soon as he learned them, he immediately offered to pay to Davis the amount paid by him to the Lincolns, and all his expenses and interest.

On the whole substantial justice requires that the peti*273tioner should he permitted to redeem. The decree of the Superior Court must therefore be reversed.

In this opinion the other judges concurred.