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1, 1908, the defendant had in his possession | ing so he assumed a responsibility which was certain articles of personal property belong. not attached to him up to that time, and ing to the plaintiff. On said day the de- | then, further, if you find that he left the fendant used said property, and permitted chest as secure after he had broken it open others in his employ to use them, without as it was before, then this responsibility authority from the plaintiff, and thereby con. would not be any greater than it was before verted the same to his own use. Said prop- that, and he would be liable only for slight erty has never been returned to the plain care in case the tools or chest became lost." tiff, although the plaintiff has demanded the In this there was error. The complaint alsame from the defendant.

leged a taking and conversion of the plainFrom the finding it appears that the fol- tiff's tools by the defendant. The instruclowing facts were substantially conceded : tions directed the attention of the jury to That the plaintiff was a tinner who had been other and different elements of liability. in the employ of the defendant about eight The instructions did not confine the attenmonths when he stopped work in conse- tion of the jury to the case stated in the quence of a strike. When the plaintiff left, pleadings, but the jury were given to undercertain tinning tools belonging to him were stand that they might find against the delocked in his chest in the defendant's shop. fendant upon a cause of action foreign to the Two.or three days thereafter the defendant issue. This charge assumes that the plainmade search for soldering irons belonging to tiff's cause of action was based upon neglibim which the plaintiff had been using, and, gence in breaking and leaving open the plainbeing unable to find them, the defendant tiff's chest containing his tools. This 'asopened the plaintiff's tool chest by unscrew- sumption was wrong, as there was no such ing the hinges, and took therefrom the miss-issue presented by the pleadings. As hereing tools. A few days after the plaintiff tofore stated, the whole case exhibited in the stopped work, he called at the shop of the complaint rested upon an alleged conversion defendant, and found his chest open and of the plaintiff's personal property. Pleadsome of his tools missing. These tools and ings are essential in every system of jurischest had been in the possession of the de- prudence, and there can be no orderly adfendant from the time the plaintiff stopped ministration of justice without them; but, work on December 1, 1907, until the strike | if a party can allege one cause of action and was ended about two months later. The then recover upon another, his complaint will plaintiff claimed that he had shown that his serve no useful purpose. It will rather serve tools had never been returned to him, al- to ensnare and mislead his adversary. Souththough demanded from the defendant. The wick v. First National Bank of Memphis, defendant claimed to have proven that he 84 N. Y. 420-428. A judgment based upon had not touched, taken, or used, or given any facts found by the trial court, but not inperson permission to take or use, the tools volved in the issue raised by the pleadings, in question; that he simply opened the plain. is erroneous, and cannot be upheld. Greentiff's tool chest for the purpose of recover-thal v. Lincoln, Seyms & Co. et al., 67 Conn. ing his own tools which the plaintiff had 372, 35 Atl. 266, 377, 378. A party cannot stored therein. The alleged conversion of allege one cause of action and recover judg. the plaintiff's tools by the defendant was the ment upon another. Moran et al. v. Bentley, controlling issue presented by the pleadings Adm'r, 69 Conn. 392–403, 37 Atl. 1092. Unand the claims of the parties.

der our practice act the right to recover Is The court charged the jury as follows: "If limited by the facts alleged in the complaint. the defendant had not touched this chest, Powers v. Mulvey, 51 Conn. 432, 433. The then his responsibility regarding the tools instructions of the court must be correct, and chest would have been very slight, if adapted to the issue, and sufficient for the any. But, according to the evidence of the guidance of the jury in the case before them. plaintiff and defendant, the chest was brok. State v. Kelly, 77 Conn. 266-274, 58 Atl. 705; en into by the defendant, and according to a Hartford v. Champion, 58 Conn. 268, 20 Atl. part of the evidence, as to which you will 471; Waters v. Bristol, 26 Conn. 398. recall, the chest was left unlocked; that is, The defendant in writing requested the broken open, and not being secured by the court to charge the jury as follows: “This defendant after he had broken it open. His action is brought by the plaintiff for the conresponsibility was increased in that case, version by the defendant to his own use of and, if you find in that case that on account certain mechanic's tools described in the of his opening the box the tools were lost or complaint, and to this the defendant has used by the defendant, then the responsibil. entered a general denial. The burden of ity of the defendant was by that fact in- proof is therefore on the plaintiff to satiscreased, and he may, on account of his break-fy you by a fair preponderance of the evi. ing open the chest and leaving it in this con- dence that the defendant either actually apdition, become liable for the tools, provided propriated the goods in question to his own you find it was on account of his negligence. use, or refused to deliver them up on a propAs I say, the defendant had the right, if his er demand made by the plaintiff. If the tools were locked up in this chest, to open it plaintiff has failed to satisfy you by a fair

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points, your verdict should be for the defend- | the right to except to the sustaining of the deant. It is not for the defendant to prove murrer. that he did not convert the tools to his own

(Ed. Note.-For other cases, see Pleading, use, but the plaintiff must prove that he did, Cent. Dig. & 1403; Dec. Dig. 9'418.*] and, if the plaintiff has falled to make out 2. PLEADING ($ 418*)—RULINGS ON DEMUR

RER-WAIVER. his case, the verdict goes for the defendant

The first defense in the answer admitted or as a matter of course. If you find that the denied all the allegations of the cor int. The plaintiff was in the employ of the defend second defense and counterclaim were held inant and quit work and left his tools on the granted plaintiff's motion for answer to unan

sufficient on demurrer. The court subsequently premises of the defendant, and the defend-swered paragraphs of the complaint, and orderapt did nothing more to or with them than ed that an answer be filed within a specified to allow them to remain there, and refused time. Held, that the order merely limited the

time for the filing of any additional answer and to carry them to the plaintiff's house, or such an election to file an amended answer was volplace as the plaintiff designated, and that untary, so that defendant by filing an amended his opening of the tool chest was merely to answer waived the sustaining of the demurrer. repossess himself of tools belonging to the Cent. Dig. & 1403; Dec. Dig. & 418.*]

[Ed. Note.-For other cases, see Pleading, defendant, then your verdict should be for the defendant, for these acts would not con

3. ATTACHMENT (8 54*) - PROPERTY SUBJECT stitute any conversion of the plaintiff's prop- The interest of a mortgagee in the morterty. Even if you find that the plaintiff's gaged premises cannot be attached. tools were lost or misappropriated by some

(Ed. Note.–For other cases, see Attachment, one on the premises of the defendant, that Cent. Dig. § 144; Dec. Dig. $ 54.*] does not make the defendant liable.

He

4. EXECUTION (8 38*)-PROPERTY SUBJECT TO. cannot be liable unless it is proved by a fair gaged premises cannot be set off on execution.

The interest of a mortgagee in the mortpreponderance of the evidence that he, the

[Ed. Note. For other cases, see Execution, defendant, either by himself or under his Cent. Dig. $ 100; Dec. Dig. $ 38.*] direction misappropriated the tools of the 5. JUDGMENT (8 777*)–LIEN-PROPERTY SUBplaintifl.” The propositions contained in JECT TO. these requests were a correct statement of

Under Gen. St. 1902, § 4151, providing that

no judgment lien shall be valid as to any interthe law and applicable to the case. The de-est in real estate which might not bave been fendant was entitled to have them given to levied on under an execution on the same judgthe jury, at least in substance. An examina- ment, the interest of a mortgagee in the morttion of the charge which is set out in full in gaged premises cannot be reached by a judg

ment the record discloses that these requests were [Ed. Note.-For other cases, see Judgment, not given in form or substance. On the Cent. Dig. § 1338; Dec. Dig. § 777.*] contrary, the charge (as already indicated) | 6. MORTGAGES ($ 476*) — FORECLOSURE PROcontains directions to the jury inconsistent CEEDINGS-NATURE. with the instructions requested. When evi

Mortgage foreclosure proceedings are instidence is offered by either party to prove a equities of redemption, and thus bring perfection

tuted to enable a mortgagee or lienor to cut off certain state of facts, and the claim is made to his incomplete title, and they do not have that they are proved and the court is cor- for their purpose the settlement of disputed tirectly requested to charge the jury what the tles, and investigation into the title of the mortlaw is, as applicable to the case, the court incidental to the main object of the proceed

gagee or lienor is permissible only when it is must comply. Morris v. Platt, 32 Conn. 75–ings. 82. It is not error to refuse to give requested [Ed. Note. For other cases, see Mortgages, instructions which are sufficiently covered by Cent. Dig. & 1392; Dec. Dig. $ 476.*] the instructions in the case. Crotty v. Dan-| 7. JUDGMENT (8 660*)-RES JUDICATA-ERRObury, 79 Conn. 380, 65 Atl. 147; Houghton

NEOUS JUDGMENT.

One sued a mortgagee, and attached her v. New. Haven, 79 Conn. 639, 66 Atl. 509; | interest in the mortgaged premises. He subseRidgefield v. Fairfield, 73 Conn. 47, 51, 46 quently filed a judgment lien on the premises. Atl. 245; Charter v. Lane, 62 Conn. 121, 25 The mortgagee and equity owners were made Atl. 464; Hartford v. Champion, 58 Conn. A judgment of foreclosure was rendered and the

parties to a proceeding to foreclose such lien. 269, 20 Atl. 471.

time limited for the several parties to redeem. There is error, and new trial ordered. No one redeemed, and a foreclosure certificate

was filed of record. Held, that the judgment foreclosing the judgment lien was not effectual

to establish in the judgment creditor title to (81 Conn. 415)

the mortgagee's interest; such interest not be

ing liable to attachment nor to be set off on PETTUS et al. v. GAULT et al.

execution, and hence not subject to a judgment

lien, and a decree in favor of a party without (Supreme Court of Errors of Connecticut. Dec. interest in the subject to be affected is useless. 18, 1908.)

[Ed. Note.-For other cases, see Judgment, 1. PLEADING (8 418*)-RULINGS ON DEMUR- Cent. Dig. $ 1171; Dec. Dig. Ś 660.*] RER—WAIVER.

8. MORTGAGES ( 1*)-NATURE-REAL OR PERA defendant voluntarily filing an amended SONAL PROPERTY. or substitute answer after a former one has A note given to evidence an indebtedness been adjudged insufficient on demurrer waives and a mortgage to secure it are personal property in the hands of the transferee of the note Appeal from Superior Court, New Haven and mortgage.

County ; Edwin B. Gager, Judge. [Ed. Note. For other cases, see Mortgages, Action by Isabella M. Pettus and another Cent. Dig. § 1; Dec. Dig. & 1.*]

against Leonard Gault and another to fore9. HUSBAND AND WIFE (8 135*)--PROPERTY close a mortgage of real estate. From a judgRIGHTS-STATUTES.

Under Gen. St. 1902, § 4541, providing that ment for plaintiffs, defendant Leonard Gault the personal property of any woman married appeals. Affirmed. after June 22, 1819, and prior to April 20, 1877, shall vest in the husband in trust, etc., the legal

William Burr Wright in his lifetime retitle to a note and mortgage securing it, assigned ceived from the then owners of the land deto a woman who married between the designated scribed in the complaint the note and mortdątes, vests in the husband, and the equitable gage also described in the complaint. The title remains in her, and, on the husband's death, the trust terminates and the legal title note was given to evidence an indebtedness vests in her, making her the absolute owner. and the mortgage as security therefor. His

[Ed. Note.--For other cases, see Husband and daughter, the defendant Mary E. Wright Wife, Cent. Dig. $ 501; Dec. Dig. $ 135.*] Smith, on May 16, 1887, became the owner of 10. HUSBAND AND WIFE (8 199*) — CONVEY- this note and mortgage, which continued to ANCE-RATIFICATION.

be hers until October 12, 1900. She was durA married woman who assigns a note and ing all this period a married woman living mortgage assigned to her may ratify the assignment after the death of the husband who did with her husband, to whom she was married not join therein.

prior to 1877. He died on or about January [Ed. Note.–For other cases, see Husband and 9, 1901. On October 12, 1900, Mrs. Smith, Wife, Cent. Dig. $ 734; Dec. Dig. $ 199.*] for value received, assigned and transferred 11. HUSBAND AND WIFE ($ 202*) — ASSIGN- her interest in the note to the plaintiffs, who MENT OF MORTGAGE-JOINDER OF HUSBAND

are now the good-faith owners thereof. The -OBJECTIONS BY MORTGAGOR,

A married woman having the equitable title mortgage was not delivered to the plaintiffs, in a note and mortgage securing it transferred and they never had possession of it, and Mr. it; her husband, who had the legal title, not Smith did not join in the assignment. In joining in the transfer. Subsequently the hus the course of events one Mary E. Schofield band died, and thereafter the assignee brought a suit to foreclose the mortgage, making the died in December, 1898, possessed of the equimarried woman a party defendant. She acqui- ty in the mortgaged premises. Pursuant to esced in the title of the assignee. Held, that a provision of her will, its executor conveythe owner of the equity in the mortgaged prem-ed this equity to the Hill & Hubbell Lumber ises could not attack the validity of the transfer on the ground that the husband did not Company April 27, 1899, and shortly therejoin therein.

after this company conveyed all its right, [Ed. Note. For other cases, see Husband and title, and interest in the premises to the deWife, Cent. Dig. § 737; Dec. Dig. § 202.*] fendant Gault. The defendant Gault filed an 12. MORTGAGES (8 463*)-FORECLOSURE-Evi- answer containing two defenses and a count.

erclaim. The second of these defenses asWhere, in a suit to foreclose a mortgagę serted that on December 28, 1898, said lumbrought by the assignee of the note secured thereby, the answer admitted the giving of the ber company commenced an action returnable mortgage, its terms, and its record, and plain to the town court of Norwalk against Mrs. tiff proved his ownership of the note and the Smith and placed an attachment therein on nonpayment thereof, the court properly fore her right, title, and interest in the mortgaged closed the mortgage, though neither the mortgage nor a copy thereof was offered in evidence, premises; that subsequently the company had and though there was no evidence that the judgment for $180 damages and $30.15 costs; mortgage had ever been in the possession of that February 9, 1899, the company, for the plaintiff, or that it existed at the time of the assignment to him; Gen. St. 1902, § 4127, au

purpose of securing this judgment, filed a thorizing a foreclosure of the mortgage by the judgment lien upon the premises; tbat Febowner of the debt secured.

ruary 15, 1899, proceedings for the foreclo[Ed. Note.--For other cases, see Mortgages, sure of this lien were begun in sala town Cent. Dig. § 1361; Dec. Dig. S 463.*]

court, Mrs. Smith and the equity owners be13. MORTGAGES ($ 235*)—INCIDENT TO DEBT | ing made parties; that judgment of forecloSECURED. A mortgage securing a debt is only an

sure was subsequently rendered, and times incident to the debt from which it cannot be limited for the several parties to redeem; detached, and the holder of the mortgage must that no one redeemed within the times so limhold it for the benefit of the holder of the debt.ited, the last of which was fixed at April

[Ed. Note. For other cases, see Mortgages, 26, 1899; that on April 28, 1899, a foreclosure Cent. Dig. $ 620; Dec. Dig. $ 235.*]

certificate was filed of record; that thereaft14. EVIDENCE (8 67*) – FORECLOSURE — Evier, to wit, on May 6, 1899, the company conDENCE-PRESUMPTIONS.

Where, in a suit to foreclose a mortgage, veyed the premises to the defendant Gault the answer admitted the giving of the mortgage, by a warranty deed; that the title thereupon its terms, and its record, a presumption arose became perfect in Gault as the absolute ownthat the condition created continued to exist which was sufficient for plaintiff's purpose until signment to the plaintiffs was subsequent to

er of the premises; and that the alleged assomething to indicate the contrary appeared.

[Ed. Note.-For other cases, see Evidence, all these transactions. This defense was sucCent. Dig. $ 87; Dec. Dig. $ 67.*]

cessfully demurred to. A substitute answer

DENCE.

was then filed, which was in turn demurred squired upon the facts pleaded in the first anto. This demurrer was sustained as to the swer no interest in the property in question, second and third defenses. Upon the trial either by the attachment attempted to be neither the mortgage nor a copy was offered made in its action against Mary E. Wright in evidence, and no evidence was presented to Smith or by the judgment lien which was show that the mortgage had been lost or de- filed. Mrs. Smith had no other title or instroyed, or what disposition had been made terest in the property than as mortgagee. of it. The defendant Gault alone filed an an. Such an interest in lands cannot be attached swer. Mrs. Smith, the only other defendant, or set off on execution. Huntington v. Smith, made default of appearance.

4 Conn. 235, 237; McKelvey v. Creevey, 72 Edward M. Lockwood, for appellant. John Conn. 464, 467, 45 Atl. 4, 77 Am. St. Rep. 321. O'Neill, for appellees.

Neither can it be reached by a judgment lien.

Gen. St. 1902, § 4151. The judgment of the PRENTICE, J. (after stating the facts as town court of Norwalk purporting, upon the above). The first assignment of error charges complaint of the lumber company, to forethat there was error in the sustaining of a close the judgment lien, although Mrs. Smith demurrer filed to the second defense of the was made a party to the proceedings, was not original answer of the defendant Gault. For effectual, as claimed, to establish in the comthis answer in its entirety another was later pany as res adjudicata a title to her mortgage substituted, which, in its turn, was demurred interest which had not become subject to the to. When a defendant voluntarily files an lien foreclosed. It is doubtless true that the amended or substitute answer after a former title of a mortgagee may to a certain extent one has been adjudged insufficient on demur- and for certain purposes become the subject ror, he waives all right to except to the ac- of inquiry and decision in foreclosure proceedtion of the court in sustaining the demurrerings. Cowles v. Woodruff, 8 Conn. 35, 38; to the first answer. Mitchell v. Smith, 74 Frink v. Branch, 16 Conn. 260, 268; Bull v. Conn. 125, 128, 49 Atl. 909; Burke v. Wright, Meloney, 27 Conn. 560, 562; Middletown Sav75 Conn. 641, 643, 55 Atl. 14. The defendant ings Bank v. Bacharach, 46 Conn. 513, 526; contends that his action in filing the substi- De Wolf v. Sprague Mfg. Co., 49 Conn. 282, tute answer was not voluntary, but in com- 306. It is unnecessary for the purposes of pliance with an order of court. It appears this case to analyze these cases and the prior that, after the second defense and counter- ones of Broome v. Beers, 6 Conn. 198, and claim contained in the original answer had Palmer v. Mead, 7 Conn. 149, expressing difbeen held insufficient, the plaintiffs placed up- ferent views to determine the precise state of on the short calendar a motion for answer our law upon this subject. It is sufficient for to paragraphs of the complaint standing un- present purposes that such proceedings do not answered, and the court granted the motion, have for their purpose the settlement of disand ordered that an answer be filed within puted titles and are not appropriate to that two weeks. As the first defense either ad-end. Cowles v. Woodruff, 8 Conn. 35–37. mitted or denied all the allegations of the They are instituted to enable a mortgagee or complaint, it does not appear what the reason lienor to cut off equities of redemption, and or purpose of the motion was unless it was thus bring reinforcement or perfection to his prompted by a desire to expedite the filing incomplete title. Bull v. Meloney, 27 Conn. of any additional defense the defendant might 560, 562. Such investigation, into the title of wish to avail himself of. But, however this the mortgagee or lienor as is permissible is might be, the so-called order was in no sense one which is incidental to the main object of a command to the defendant that he answer the proceedings. It is recognized that the asfurther. He was left at perfect liberty to do sumed status of the foreclosing mortgagee or so or not, as he chose. The only compulsion lienor is one wbich ought to be open to inquiry that he was placed under was to file any ad- if judicial proceedings are not to be trifled ditional answer that he wished to incorporate with, but the issue is not necessarily presentin his pleadings within the time specified if ed, and is not to be regarded as necessarily he did not wish his right to answer further adjudicated. All that the cases recognize is cut off. The order was nothing more than a that the title may be made the subject of inlimitation of time, and in all respects save as vestigation for proper purposes.

Frink v. to the matter of time he remained as free to Branch, 16 Conn. 260, 268; De Wolf v. act his will after as he was before it was Sprague Mfg. Co., 49 Conn. 282, 306, 307. In made. His election to file an amended answer the foreclosure in question the then plaintiff was in the fullest sense a voluntary act on had nothing in the way of title or interest to his part, carrying with it the waiver of all perfect. The judgment of the court limiting right to challenge the correctness of the rul- a time for the exercise by Mrs. Smith of a ing of the court upon the demurrer to the right to redeem was but a barren ceremony. superseded pleading.

"A decree in favor of a party without interest But this defendant, by the operation of in the subject to be affected would be useless." this rule, has not been deprived of any sub- Frink v. Branch, 16 Conn. 260, 268. stantial benefit. The Hill & Hubbell Lumber The appealing defendant complains of the foreclosure, notwithstanding it appeared that the validity of the assignment and transfer the plaintiffs had no other title to or interest was and is one personal to her, and no other in the mortgage note and security than that person is in a position to do so. She is a Jerived from an assignment and transfer for party defendant to this action. She has not value from a married woman married prior to chosen to question the title of these plaintiffs 1877 and at the time of the transaction living to the note and security sought to be enforced. with her husband. The right of the defendant On the contrary, she has chosen to remain to thus challenge the plaintiffs' right to prose- silent and acquiesce in the validity of the title cute their action has already been noticed. she attempted to give. The defendant Gault It was not, however, well made. It is not has no standing to act for her or to assert distinctly found whether Mrs. Smith, the rights which are hers alone. transferror of the note, was married before or The defendant in his last reason of appeal after 1849. The presumed intent of the find charges that there was error in rendering the ing, however, is that her married status and judgment of foreclosure when the mortgage property rights are to be determined by the or a copy thereof had not been produced at law as it was during the period of nearly 30 the trial, no evidence offered that the mortyears which immediately preceded 1877. By gage had ever been in the hands or possession that law the legal title to Mrs. Smith's per- of the plaintiffs, and no proof of the existence sonal estate, there being nothing to show that of the mortgage at the time of the alleged asit was her sole and separate estate, vested signment to the plaintiffs produced. The in her husband as trustee. Gen. St. 1902, | mortgage which the answer admits to have 4541. This note and its security is to be re- been given to secure the payment according garded as personal estate. Waterbury Sav. to its tenor of the note described in the comings Bank v. Lawler, 46 Conn. 243, 245; Mc- plaint and to have been duly recorded was Kelvey v. Creevey, 72 Conn. 464, 467, 45 Atl. only an incident to the debt from which it 4, 77 Am. St. Rep. 321. The equitable title could not be detached and distinct from which was in Mrs. Smith. Belden v. Sedgwick, 68 | it had no determination value, and the holder Conn. 560, 566, 37 Atl. 417. Upon the death or assignee of it must hold it at the will of Mr. Smith in 1901, the trust terminated, and disposal of the creditor. Huntington v. and the legal title to all of Mrs. Smith's per- Smith, 4 Conn. 235, 237; Chamberlain v. Consonalty vested in her, thus merging the legal necticut Central R. Co., 54 Conn. 472, 484, and equitable estates and making her its ab- 9 Atl. 244. This mortgage, therefore, whether solute owner. Connecticut T. & S. D. Co. v. it remained in Mrs. Smith's hands or passed Security Co., 67 Conn. 138, 442, 35 Atl. 342. into other hands or had become destroyed reWhatever title or interest in the note and its mained until lawfully discharged security for security which Mrs. Smith undertook to trans- the note in suit after the plaintiffs received fer to these plaintiffs failed to pass to them by it, and, when the plaintiffs established their virtue of the transfer thus became upon the ownership of the note and satisfied the court death of her husband vested in her without of its nonpayment, their right to avail them. restraint upon her power of dominion and con- selves of such security as the mortgage aftrol over them on the part of anybody. If it forded was sufficiently established. See Gen. be assumed, therefore, that her original as- St. 1902, § 4127. As the answer admitted the signment was ineffectual to carry a good title giving of the mortgage, its terms, and its recto these plaintiffs and that she would not be ord, a presumption arose that the condition estopped from questioning that title, it cer- thus created continued to exist which would tainly was in her power after her husband's be sufficient for the plaintiffs' purpose until death to confirm and ratify either expressly something to indicate the contrary appeared. or by conduct the transfer she had previously Gray v. Finch, 23 Conn. 495, 513. attempted to make, and it is still in her power There is no error. The other Judges conso to do. In any event, the right to challenge curred.

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