68 Conn. 413 | Conn. | 1896
The office of an execution is to execute the judgment. The judgment obtained by Jessup provided for a strict foreclosure of his lien, unless the indebtedness of Mrs. Chapman to him were paid by her or some other of the defendants, by November 22d, 1894, and for the delivery of possession to him, but with stay of execution until after that day had passed. The judgment for possession was merely ancillary to the judgment of foreclosure. Having jurisdiction to enforce the lien, the court had jurisdiction to do whatever was necessary to enforce it effectually and give complete relief. Middletown Savings Bank v. Bacharach, 46 Conn. 513, 526. But within the time limited for redemption, one of the defendants—the present applicant—did redeem. The purpose of the foreclosure suit was thus accomplished. The creditor received all that was due him, and it became unnecessary for his protection to dispossess Mrs. Chapman.
The present applicant, by making this payment, became entitled to the benefit of the mechanic’s lien, but not to the benefit of the execution. That had been stayed until it could be ascertained whether the foreclosure would become absolute. It never became absolute, and therefore the only-object which would justify its issue in an equitable action ceased to exist.
The applicant claims that the holder of a mechanic’s lien occupies, with regard to the mortgagor, the same position as
The quitclaim deed, therefore, from Jessup to the applicant, did not convey the legal title to the land, for it was never in the grantor. It did not convey a possessory right, enforceable by execution, for that also the grantor had never acquired. The judgment in his favor for possession spent its force when his debt was paid by one of the parties to the cause, within the appointed time. His lien was not sold to a stranger, but passed to a party who had and exercised a right of redemption ; and the event thus occurred, the possibility of which had induced the court to stay the execution. Had his foreclosure become absolute, and had he then accepted payment of the amount of his claim from some third party and transferred to him his interest in the mortgaged premises, the purchaser might have been considered to occupy the position of an equitable assignee of a judgment so far as to justify him in demanding the issue of an execution in the name of Jessup, to put him in possession. The present applicant has no such right, for his payment prevented any absolute foreclosure, and was made by way of redemption instead of purchase. He can obtain possession only if necessary for his own protection, and on proceedings against those who may be in occupation, instituted in his own name.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.
