Opinion
(2778)
The plaintiffs sought a deficiency judgment for the amount which they claimed remained due them after the foreclosure sale of certain Massachusetts real property mortgaged to them by the defendant. The defendant, by way of counterclaim, sought the reconveyance of a parcel of land which he claimed had been erroneously included in the mortgage deed. On the plaintiff's appeal from the trial court's judgment in favor of the defendant on the counterclaim, held that, the parties here having all participated in the Massachusetts foreclosure proceeding, from which the defendant sought no relief, the trial court should, since the requirements of res judicata were satisfied, have rendered judgment for the plaintiffs on the counterclaim.
Argued May 16, 1985
Decision released July 23, 1985
Action to recover amounts allegedly due under a mortgage note following the foreclosure of certain of the defendant's real property, brought to the Superior Court in the judicial district of Fairfield where the defendant filed a counterclaim for reconveyance of a parcel of the foreclosed property; the case was tried to the court, Ryan, J.; judgment for the defendant on the counterclaim, from which the plaintiffs appealed to this court. Error; judgment directed.
The appellee filed a motion for reargument which was denied.
Raymond W. Beckwith, for the appellants (plaintiffs).
Raphael Korff for the appellee (defendant).
The plaintiffs commenced this action to recover monies still due on a mortgage note after a foreclosure sale. The defendant filed a counterclaim seeking the reconveyance from the plaintiffs of a parcel of land which he claimed was erroneously included in the mortgage deed. From the judgment rendered in favor of the defendant on the counterclaim, the plaintiffs have appealed.
The counterclaim is the only matter on appeal.
The plaintiff Jean Bernstein has since deceased but nothing has been done to substitute a legal representative party for her. Since title to the property was jointly held in survivorship, ostensibly title now reposes in the plaintiff Philip Bernstein, her husband.
This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes 51-199(c).
The factual situation does not appear to be in dispute. The defendant was the owner of three parcels of land located in the town of Wales, Massachusetts. One parcel consisted of 185 acres, the second parcel consisted of 53 acres and the third parcel consisted of 41 acres. On or about May 30, 1975, the plaintiffs loaned the sum of $50,000 to the defendant in return for which the defendant executed a mortgage note and deed describing the three parcels. The defendant claims that the 41 acre parcel was included in the mortgage deed by mistake. When the defendant defaulted in the payments on the note, the plaintiffs instituted a foreclosure action in Massachusetts and purchased the entire property (consisting of all three parcels) at the foreclosure sale. The defendant protested the sale of the 41 acre parcel, but neglected to take any preventive action, despite being advised of the various remedies available.
When the plaintiffs sought to recover a deficiency judgment against the defendant, he filed this counterclaim seeking equitable relief. The trial court found for the defendant, and ordered the plaintiffs to reconvey the land to the defendant upon the condition that the defendant hold the plaintiffs harmless from any possible monetary damages due to a third party claiming title.
The plaintiffs entered into an agreement to sell the three parcels. The 185 acre and 53 acre parcels have been sold. The sale of the 41 acre parcel has been forestalled due to this litigation.
The plaintiffs claim that the trial court erred (1) in ruling that the defendant, an experienced real estate broker, could equitably assert title to a Massachusetts parcel of land when he admitted that he had not read the mortgage deed whereby the lien was created thereon, (2) in finding that the 41 acre parcel was not included in the mortgage deed, (3) in determining that the defendant could ignore the Massachusetts foreclosure law and was not obligated to take any steps to protect his rights thereunder, and in further determining that he was entitled to equitable relief in Connecticut even though the defendant's claims under Massachusetts law were barred by the statute of limitations, and (4) in taking jurisdiction over this case because all parties were Connecticut residents, despite the fact that the realty is located in Massachusetts.
We will consider the third issue since that is dispositive of this appeal.
It is settled law that "a judgment in a former action between the same parties and upon the same cause of action is conclusive upon the parties to a subsequent action as to every question which was or might have been presented or determined in the former action." Lechner v. Holmberg, 165 Conn. 152, 155-56, 328 A.2d 701 (1973), quoting State ex rel. Campo v. Osborn, 126 Conn. 214, 218, 10 A.2d 687 (1940). It is clear that the requirements of res judicata have been satisfied, since the parties herein and the 41 acre parcel were involved in the Massachusetts foreclosure proceedings, from which the defendant sought no relief, in Massachusetts.