98 A. 90 | Conn. | 1916
Fitzgerald, on August 11th, 1911, entered into a contract known as a bond for a deed, with the defendant Grussi, by which he agreed to sell Grussi certain premises, and to deliver to him on or before February 9th, 1921, a warranty deed of the same subject to a mortgage of $2,000, in consideration of the payment by Grussi of $1,150 on or before February 9th, 1921, payable $200 at the execution of the agreement, $50 on or before February 9th, 1912, and $50 on or before each February 9th and August 9th thereafter, and the balance on or before February 9th, 1921, and the assumption by Grussi of said mortgage with the interest thereon and taxes thereafter accruing. And Grussi, in consideration of the promises of Fitzgerald, agreed to these terms, and further agreed that in case he failed to make the several payments he should forfeit all claim to the premises and all moneys paid in pursuance of the agreement.
Grussi paid the $200, and four of the semi-annual payments, and some interest and taxes. He did not make such payments after August 9th, 1913. On April 28th, 1915, he was in default upon three semi-annual payments, the interest on the mortgage due May 1st, 1915, and the taxes due April 21st, 1915. Prior to April 28th, 1915, Grussi notified Fitzgerald that *557 he would abandon his contract and leave the premises, and Fitzgerald and Grussi thereupon mutually agreed orally to the abandonment and to the cancellation of the bond. In pursuance of the mutual agreement, Grussi left the premises and Fitzgerald took possession of the same and paid the taxes and interest due. On May 22d 1915, Grussi executed a quitclaim deed of these premises to Fitzgerald, it being intended as a release of the bond for a deed; and on the same day Fitzgerald, by warranty deed, conveyed these premises to the defendant Budd for $3,200.
The plaintiff attached the interest of Grussi in these premises on May 13th, 1915, in an action to recover upon an account contracted by Grussi. The plaintiff took judgment and filed a judgment-lien against these premises on September 13th, 1915. A second judgment-lien was filed October 29th, 1915, and suit to foreclose this lien was commenced on October 30th, 1915.
The defendants, by their denial, put in issue the allegation of the complaint that Grussi had an interest in these premises by virtue of the agreement for a deed, and by specific allegation in their answer alleged that he had no interest in these premises, and none that could be taken by attachment, and that all right, title and interest in these premises on this date was in them.
Grussi acquired by his agreement and payments thereunder an equitable interest in the premises in question which was subject to attachment. Reynolds v.Fleming,
We are of the opinion that the trial court was mistaken in holding the remedy of General Statutes, § 834, applicable to real estate; its terms and its history make it clear that it applies exclusively to personal property; but this holding was only one of the several grounds for its judgment, and as we think the judgment correct, this error is harmless.
The plaintiff argues that the abandonment was a transfer of an interest in land, and being oral was within the statute of frauds (§ 1089). This is a mistake. The abandonment in this case was not a transfer of an interest in land. It was the giving up of the possession of land held under a contract upon the fulfillment of which the possessor might obtain title. He had until that time an inchoate interest, but no title. The surrender did not affect the title for Grussi had none, he merely surrendered the possession.
Eminent authority lays it down as the common law that a legal title perfected into a grant or vested by a deed may never be lost by abandonment. Krueger v.Market,
The claim most emphasized by the plaintiff is that the defense of a surrender or abandonment was a special one which the defendants could not avail themselves of unless it were pleaded.
The burden of proving an interest arising from its attachment was upon the plaintiff. If Grussi had surrendered or abandoned his inchoate interest in these premises, the plaintiff took nothing by his attachment. The plaintiff's attachable interest depended upon Grussi's interest, and anything which showed that Grussi had no attachable interest at the date of the plaintiff's attachment was necessarily put in issue by a denial that Grussi had an interest in the premises. The instant Grussi surrendered or abandoned these premises, that instant he ceased to have any interest in the premises. He had then lost his possession. The issue is one of possession, and proof of the fact of abandonment disproves the possession, and hence may be shown under a general denial. In Willson v. Cleaveland,
The finding of the abandonment by Grussi on April 28th controls the judgment. The abandonment was complete on April 28th, and possession was delivered on that day. The quitclaim deed executed on May 22d, from Fitzgerald to Grussi, was merely an instrument to remove from the record the cloud upon the title arising from the recording of the bond for a deed; it in no way affected the surrender of the premises. That was already an accomplished fact.
There is no error.
In this opinion the other judges concurred.