Waterman v. Curtis, 26 Conn. 241

Waterman v. Curtis

26 Conn. 241 | Conn. | 1857

Storrs, C. J.

The only relief prayed for in this bill, respecting which it is claimed by the plaintiff in error that the decree of the superior court is erroneous, is the liberty of redeeming the mortgages held by the defendants, Callender and Curtis. The bill contains no averment of the amount due on the debts secured by those mortgages, or either of them, nor that either of those debts was contracted on an usurious agreement. The only allegation, which by possibility could relate to that subject, is the one in which it is stated, only in the most general form, that the interest of Pratt in the property mortgaged by him, was, when the plaintiff attached that interest, greater than the sum at which it was appraised and set off to him on his execution against Pratt and others, and that it was sufficient for the payment of the debt for which he recovered judgment against them. There is no averment of the actual amount of the interest of Pratt, either when it was attached or set off to the plaintiff, nor of any facts shewing why the whole *246amount of such interest, or sufficient to satisfy his judgment, was not set off to him on his execution. Nor are any facts stated from which it appears that the extent of Pratt’s interest was not then known by the plaintiff, or that there was any fraud, accident, mistake, or other circumstance, which would lay the foundation, in a court of equity, for its interposition, by way of correcting the levy, or in any other mode. But the plaintiff in error claims to have proved that the debts of Pratt, which some of the mortgages under which the defendants now claim were made to secure, were contracted on a usurious consideration, that payments had been made by Pratt on them previous to the plaintiff’s levy, which were not deducted, as they should have been, under our statute respecting usury, from the principal of those debts> and that, if they had been so deducted, the value of Pratt’s interest, being his equity of redemption in the mortgaged property, would have been enhanced by the appraisers on the plaintiff’s execution, so as to have left in Pratt a greater interest to be appraised and set off to the plaintiff than that which was actually taken by him ; and he now claims that the superior court erred in ascertaining the amount due to the defendants on those debts, because it did not reject all interest upon them, and apply all the payments to the reduction of the principal. Hence it is obvious that there is no averment in the bill, under which it was competent for the plaintiff to insist that the defendants’ mortgages were affected by usury in the debts they were given to secure, except the general allegation which has been mentioned. If the plaintiff could have been allowed, under proper averments, to set up such usury, to reduce those debts, we think that that general allegation was insufficient for that purpose, and that it was incumbent on the plaintiff, in his bill, not only to allege that those debts were contracted on a usurious agreement, but also the particular facts and circumstances of that agreement, so that the court could see that there had been a violation of the statute of usury, and the defendants might be apprized that their mortgages would be attempted to be invalidated on that ground. Baldwin v. Norton, 2 Conn., *247161, is fully to this effect, and it is supported by the other authorities cited by the defendants, particularly by the cases of The New Orleans Gas Light Co. v. Dudley, 8 Paige, 452, 457, and Curtis v Martin, 11 Paige, 15. On the ground, therefore, that there was nothing in this bill which warranted the introduction of any evidence to prove usury in the debts secured by the mortgages held by the defendants, the finding on that subject was properly disregarded by the superior court, and in this respect there is no error in its proceedings.

But, aside' from this difficulty arising from the defect in this bill, we are further of the opinion, that the plaintiff, by his proceedings and his execution, is precluded from claiming in this case that less was due, at the time of his levy, on the mortgages of the defendants, than the sum found due by the appraisers, and subject to which appraisal the plaintiff caused the equity of redemption to be set off to himself. If Pratt, or the plaintiff, either as his creditor or as succeeding to his rights, could, under the provisions of our statute of usury, when that levy was made, have treated those mortgages as creating an incumbrance on the property only to the extent of the debts secured by them after deducting any payments, whether of principal or interest, and thus have reduced that incumbrance below what itwas estimated at by the appraisers, and had caused the levy to be made on the basis of such reduction, they did not see fit to avail themselves of that right, but choose to waive, by their levy, as they might, any objection founded on that statute, and thus to affirm those mortgages as incumbrances to the full amount of what was ostensibly due on them. Pratt being a party to the mortgages, of course was, and it does not appear that the plaintiff was not, aware of the circumstances under which they were executed, and neither of them claimed, before the appraisers on the plaintiff’s execution, that less should be allowed on them than the sum they were apparently given to secure, although it was plainly the interest of Pratt to reduce that amount in order to have the equity of redemption applied on the execution at an enhanced sum; and it was also the interest of the plaintiff to have it applied at its *248full value, unless indeed he may have supposed that he could, by allowing more on the mortgages than was really due on them, have the equity set off at an undervaluation, and then reduce the mortgages on a bill, like the present, to redeem them. We think, however, that he could not do this, but that he must be held, as the case is now presented, to his levy as he has chosen to have it made. This conclusion is in accordance with our recent decision, in Lord v. Sill, 23 Conn., 319, from which, on this point, the present case is not distinguishable.

The plaintiff in error objects to the allowance, by the superior court, to the defendants, for their personal services in leasing and collecting the rents of the mortgaged property. Under the rule adopted by the English courts, founded partly on convenience but mainly on policy, and to which they tenaciously adhere, that no compensation for personal services shall be allowed to trustees, and which they apply not only to those who are strictly such, but to all persons acting in a fiduciary capacity, such as executors, administrators, receivers, committees on the estates of lunatics, and mortgagees, that item would undoubtedly be rejected. But a reference to the decisions of the courts in this country will shew that they have generally taken a different view of this subject, and allow to trustees and these kinds of agents, not only expenditures properly made by them, but a reasonable compensation for their personal services. We are not aware that the general question of this latter allowance, independently of any previous agreement between them and those interested in his acts, has come before our courts ; but it has, for at least a very considerable period, been the practice of our tribunals to make such allowance, and, so far as we know, without objection. We think that it ought not to be disturbed. The justice of such a compensation is obvious, and it is by no' means clear that its allowance would not generally promote, rather than prevent, a faithful discharge of the duties of such agents. The amount paid to Sheldon was necessarily expended by the defendants to enable them speedily to obtain possession of the mortgaged property, and *249comes within a class of expenses which have uniformly been allowed. On these points there is no error.

The judgment complained of is therefore affirmed.

In this opinion the other judges concurred.

Judgment affirmed.