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 plaintiff's tools by the defendant. The instructions directed the attention of the jury to other and different elements of liability. The instructions did not confine the attention of the jury to the case stated in the pleadings, but the jury were given to understand that they might find against the defendant upon a cause of action foreign to the issue. This charge assumes that the plaintiff's cause of action was based upon negligence in breaking and leaving open the plaintiff's chest containing his tools. This assumption was wrong, as there was no such issue presented by the pleadings. As heretofore stated, the whole case exhibited in the complaint rested upon an alleged conversion of the plaintiff's personal property. Pleadings are essential in every system of jurisprudence, and there can be no orderly administration of justice without them; but, if a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose. It will rather serve to ensnare and mislead his adversary. Southwick v. First National Bank of Memphis, 84 N. Y. 420-428. A judgment based upon facts found by the trial court, but not involved in the issue raised by the pleadings, is erroneous, and cannot be upheld. Greenthal v. Lincoln, Seyms & Co. et al., 67 Conn. 372, 35 Atl. 266, 377, 378. A party cannot allege one cause of action and recover judgment upon another. Moran et al. v. Bentley, Adm'r, 69 Conn. 392-403, 37 Atl. 1092. Under our practice act the right to recover is limited by the facts alleged in the complaint. Powers v. Mulvey, 51 Conn. 432, 433. The instructions of the court must be correct, adapted to the issue, and sufficient for the guidance of the jury in the case before them. State v. Kelly, 77 Conn. 266-274, 58 Atl. 705; Hartford v. Champion, 58 Conn. 268, 20 Atl. 471; Waters v. Bristol, 26 Conn. 398. From the finding it appears that the following facts were substantially conceded: That the plaintiff was a tinner who had been in the employ of the defendant about eight months when he stopped work in consequence of a strike. When the plaintiff left, certain tinning tools belonging to him were locked in his chest in the defendant's shop. Two or three days thereafter the defendant made search for soldering irons belonging to him which the plaintiff had been using, and, being unable to find them, the defendant opened the plaintiff's tool chest by unscrewing the hinges, and took therefrom the missing tools. A few days after the plaintiff stopped work, he called at the shop of the defendant, and found his chest open and some of his tools missing. These tools and chest had been in the possession of the defendant from the time the plaintiff stopped work on December 1, 1907, until the strike was ended about two months later. The plaintiff claimed that he had shown that his tools had never been returned to him, although demanded from the defendant. The defendant claimed to have proven that he had not touched, taken, or used, or given any person permission to take or use, the tools in question; that he simply opened the plaintiff's tool chest for the purpose of recovering his own tools which the plaintiff had stored therein. The alleged conversion of the plaintiff's tools by the defendant was the controlling issue presented by the pleadings and the claims of the parties. The court charged the jury as follows: "If the defendant had not touched this chest, then his responsibility regarding the tools and chest would have been very slight, if any. But, according to the evidence of the plaintiff and defendant, the chest was broken into by the defendant, and according to a part of the evidence, as to which you will 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 increased, and he may, on account of his breaking open the chest and leaving it in this condition, become liable for the tools, provided you find it was on account of his negligence. As I say, the defendant had the right, if his tools were locked up in this chest, to open it proof is therefore on the plaintiff to satisfy you by a fair preponderance of the evidence that the defendant either actually appropriated the goods in question to his own use, or refused to deliver them up on a proper demand made by the plaintiff. If the plaintiff has failed to satisfy you by a fair murrer. 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 that he did not convert the tools to his own [Ed. Note. For other cases, see Pleading, Cent. Dig. § 1403; Dec. Dig. § 418.*] 2. PLEADING (§ 418*)-RULINGS ON DEMUR RER-WAIVER. The first defense in the answer admitted or denied all the allegations of the complaint. The second defense and counterclaim were held insufficient on demurrer. The court subsequently granted plaintiff's motion for answer to unan use, but the plaintiff must prove that he did, and, if the plaintiff has failed to make out his case, the verdict goes for the defendant as a matter of course. If you find that the plaintiff was in the employ of the defendant and quit work and left his tools on the premises of the defendant, and the defend-swered paragraphs of the complaint, and orderant did nothing more to or with them than to allow them to remain there, and refused to carry them to the plaintiff's house, or such place as the plaintiff designated, and that his opening of the tool chest was merely to repossess himself of tools belonging to the defendant, then your verdict should be for the defendant, for these acts would not constitute any conversion of the plaintiff's property. Even if you find that the plaintiff's tools were lost or misappropriated by some one on the premises of the defendant, that does not make the defendant liable. Не ed that an answer be filed within a specified 3. ATTACHMENT (§ 54*) - PROPERTY SUBJECT TO. The interest of a mortgagee in the mort- 4. EXECUTION (§ 38*)-PROPERTY SUBJECT TO. JECT TO. Under Gen. St. 1902, § 4151, providing that no judgment lien shall be valid as to any interest in real estate which might not have been levied on under an execution on the same judgment, the interest of a mortgagee in the mortgaged premises cannot be reached by a judgment lien. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1338; Dec. Dig. § 777.*] 6. MORTGAGES (§ 476*) - FORECLOSURE PROCEEDINGS-NATURE. cannot be liable unless it is proved by a fair preponderance of the evidence that he, the defendant, either by himself or under his direction misappropriated the tools of the plaintiff." The propositions contained in these requests were a correct statement of the law and applicable to the case. The defendant was entitled to have them given to the jury, at least in substance. An examination of the charge which is set out in full in the record discloses that these requests were not given in form or substance. On the contrary, the charge (as already indicated) contains directions to the jury inconsistent with the instructions requested. When evidence is offered by either party to prove a certain state of facts, and the claim is made that they are proved and the court is correctly requested to charge the jury what the law is, as applicable to the case, the court 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. Danbury, 79 Conn. 380, 65 Atl. 147; Houghton v. New Haven, 79 Conn. 659, 66 Atl. 509; Ridgefield v. Fairfield, 73 Conn. 47, 51, 46 Atl. 245; Charter v. Lane, 62 Conn. 121, 25 Atl. 464; Hartford v. Champion, 58 Conn. 269, 20 Atl. 471. There is error, and new trial ordered. (81 Conn. 415) PETTUS et al. v. GAULT et al. (Supreme Court of Errors of Connecticut. Dec. 18, 1908.) 1. PLEADING (§ 418*)-RULINGS ON DEMURRER-WAIVER. A defendant voluntarily filing an amended or substitute answer after a former one has been adjudged insufficient on demurrer waives Mortgage foreclosure proceedings are instituted to enable a mortgagee or lienor to cut off equities of redemption, and thus bring perfection to his incomplete title, and they do not have for their purpose the settlement of disputed titles, and investigation into the title of the mortgagee or lienor is permissible only when it is incidental to the main object of the proceed 7. JUDGMENT (§ 660*)-RES JUDICATA-ERRO- [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1171; Dec. Dig. § 660.*] 8. MORTGAGES (§ 1*)-NATURE-REAL OR PERSONAL PROPERTY. A note given to evidence an indebtedness and a mortgage to secure it are personal prop erty in the hands of the transferee of the note and mortgage. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1; Dec. Dig. § 1.*] 9. HUSBAND AND WIFE (§ 135*)-PROPERTY RIGHTS STATUTES. Under Gen. St. 1902, § 4541, providing that the personal property of any woman married after June 22, 1849, and prior to April 20, 1877, shall vest in the husband in trust, etc., the legal title to a note and mortgage securing it, assigned to a woman who married between the designated dates, vests in the husband, and the equitable title remains in her, and, on the husband's death, the trust terminates and the legal title vests in her, making her the absolute owner. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 501; Dec. Dig. § 135.*] 10. HUSBAND AND WIFE (§ 199*) - CONVEYANCE RATIFICATION. A married woman who assigns a note and mortgage assigned to her may ratify the assignment after the death of the husband who did not join therein. Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge. Action by Isabella M. Pettus and another against Leonard Gault and another to foreclose a mortgage of real estate. From a judgment for plaintiffs, defendant Leonard Gault appeals. Affirmed. William Burr Wright in his lifetime received from the then owners of the land described in the complaint the note and mortgage also described in the complaint. The note was given to evidence an indebtedness and the mortgage as security therefor. His daughter, the defendant Mary E. Wright Smith, on May 16, 1887, became the owner of this note and mortgage, which continued to be hers until October 12, 1900. She was during all this period a married woman living with her husband, to whom she was married prior to 1877. He died on or about January 9, 1901. On October 12, 1900, Mrs. Smith, for value received, assigned and transferred her interest in the note to the plaintiffs, who are now the good-faith owners thereof. 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. joining in the transfer. Subsequently the hus- the course of events one Mary E. Schofield band died, and thereafter the assignee brought died in December, 1898, possessed of the equia suit to foreclose the mortgage, making the married 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 join therein. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 734; Dec. Dig. § 199.*] 11. HUSBAND AND WIFE (§ 202*)- ASSIGNMENT OF MORTGAGE JOINDER OF HUSBAND -OBJECTIONS BY MORTGAGOR. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 737; Dec. Dig. § 202.*] 12. MORTGAGES (§ 463*)—FORECLOSURE—EVI DENCE. Where, in a suit to foreclose a mortgage brought by the assignee of the note secured thereby, the answer admitted the giving of the mortgage, its terms, and its record, and plaintiff proved his ownership of the note and the nonpayment thereof, the court properly foreclosed the mortgage, though neither the mortgage nor a copy thereof was offered in evidence, and though there was no evidence that the mortgage had ever been in the possession of plaintiff, or that it existed at the time of the assignment to him; Gen. St. 1902, § 4127, authorizing a foreclosure of the mortgage by the owner of the debt secured. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1361; Dec. Dig. § 463.*] 13. MORTGAGES (§ 235*)-INCIDENT TO DEBT SECURED. A mortgage securing a debt is only an incident to the debt from which it cannot be detached, and the holder of the mortgage must hold it for the benefit of the holder of the debt. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 620; Dec. Dig. § 235.*] 14. EVIDENCE (§ 67*) - FORECLOSURE - EVIDENCE-PRESUMPTIONS. Where, in a suit to foreclose a mortgage, the answer admitted the giving of the mortgage, its terms, and its record, a presumption arose that the condition created continued to exist which was sufficient for plaintiff's purpose until something to indicate the contrary appeared. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 87; Dec. Dig. § 67.*] The In Company April 27, 1899, and shortly thereafter this company conveyed all its right, title, and interest in the premises to the defendant Gault. The defendant Gault filed an answer containing two defenses and a counterclaim. The second of these defenses asserted that on December 28, 1898, said lumber company commenced an action returnable to the town court of Norwalk against Mrs. Smith and placed an attachment therein on her right, title, and interest in the mortgaged premises; that subsequently the company had judgment for $180 damages and $30.15 costs; that February 9, 1899, the company, for the purpose of securing this judgment, filed a judgment lien upon the premises; that February 15, 1899, proceedings for the foreclosure of this lien were begun in sald town court, Mrs. Smith and the equity owners being made parties; that judgment of foreclosure was subsequently rendered and times limited for the several parties to redeem; that no one redeemed within the times so limited, the last of which was fixed at April 26, 1899; that on April 28, 1899, a foreclosure certificate was filed of record; that thereafter, to wit, on May 6, 1899, the company conveyed the premises to the defendant Gault by a warranty deed; that the title thereupon became perfect in Gault as the absolute ownsignment to the plaintiffs was subsequent to er of the premises; and that the alleged as all these transactions. This defense was successfully demurred to. A substitute answer was then filed, which was in turn demurred | quired upon the facts pleaded in the first anto. This demurrer was sustained as to the second and third defenses. Upon the trial neither the mortgage nor a copy was offered in evidence, and no evidence was presented to show that the mortgage had been lost or destroyed, or what disposition had been made of it. The defendant Gault alone filed an answer. Mrs. Smith, the only other defendant, made default of appearance. swer no interest in the property in question, either by the attachment attempted to be made in its action against Mary E. Wright Smith or by the judgment lien which was filed. Mrs. Smith had no other title or interest in the property than as mortgagee. Such an interest in lands cannot be attached or set off on execution. Huntington v. Smith, 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. PRENTICE, J. (after stating the facts as above). The first assignment of error charges that there was error in the sustaining of a demurrer filed to the second defense of the original answer of the defendant Gault. For this answer in its entirety another was later substituted, which, in its turn, was demurred to. When a defendant voluntarily files an amended or substitute answer after a former one has been adjudged insufficient on demurror, he waives all right to except to the action of the court in sustaining the demurrer to the first answer. Mitchell v. Smith, 74 Conn. 125, 128, 49 Atl. 909; Burke v. Wright, 75 Conn. 641, 643, 55 Atl. 14. The defendant contends that his action in filing the substitute answer was not voluntary, but in compliance with an order of court. It appears that, after the second defense and counterclaim contained in the original answer had been held insufficient, the plaintiffs placed upon the short calendar a motion for answer to paragraphs of the complaint standing unanswered, and the court granted the motion, and ordered that an answer be filed within two weeks. As the first defense either admitted or denied all the allegations of the complaint, it does not appear what the reason or purpose of the motion was unless it was prompted by a desire to expedite the filing of any additional defense the defendant might wish to avail himself of. But, however this might be, the so-called order was in no sense a command to the defendant that he answer further. He was left at perfect liberty to do so or not, as he chose. The only compulsion that he was placed under was to file any additional answer that he wished to incorporate in his pleadings within the time specified if he did not wish his right to answer further cut off. The order was nothing more than a limitation of time, and in all respects save as to the matter of time he remained as free to act his will after as he was before it was made. His election to file an amended answer was in the fullest sense a voluntary act on his part, carrying with it the waiver of all right to challenge the correctness of the ruling of the court upon the demurrer to the superseded pleading. But this defendant, by the operation of this rule, has not been deprived of any substantial benefit. The Hill & Hubbell Lumber Neither can it be reached by a judgment lien. Gen. St. 1902, § 4151. The judgment of the town court of Norwalk purporting, upon the complaint of the lumber company, to foreclose the judgment lien, although Mrs. Smith was made a party to the proceedings, was not effectual, as claimed, to establish in the company as res adjudicata a title to her mortgage interest which had not become subject to the lien foreclosed. It is doubtless true that the title of a mortgagee may to a certain extent and for certain purposes become the subject of inquiry and decision in foreclosure proceedings. Cowles v. Woodruff, 8 Conn. 35, 38; Frink v. Branch, 16 Conn. 260, 268; Bull v. Meloney, 27 Conn. 560, 562; Middletown Savings Bank v. Bacharach, 46 Conn. 513, 526; De Wolf v. Sprague Mfg. Co., 49 Conn. 282, 306. It is unnecessary for the purposes of this case to analyze these cases and the prior ones of Broome v. Beers, 6 Conn. 198, and Palmer v. Mead, 7 Conn. 149, expressing different views to determine the precise state of our law upon this subject. It is sufficient for present purposes that such proceedings do not have for their purpose the settlement of disputed titles and are not appropriate to that end. Cowles v. Woodruff, 8 Conn. 35-37. They are instituted to enable a mortgagee or lienor to cut off equities of redemption, and thus bring reinforcement or perfection to his incomplete title. Bull v. Meloney, 27 Conn. 560, 562. Such investigation, into the title of the mortgagee or lienor as is permissible is one which is incidental to the main object of the proceedings. It is recognized that the assumed status of the foreclosing mortgagee or lienor is one which ought to be open to inquiry if judicial proceedings are not to be trifled with, but the issue is not necessarily presented, and is not to be regarded as necessarily adjudicated. All that the cases recognize is that the title may be made the subject of investigation for proper purposes. Frink v. Branch, 16 Conn. 260, 268; De Wolf v. Sprague Mfg. Co., 49 Conn. 282, 306, 307. In the foreclosure in question the then plaintiff had nothing in the way of title or interest to perfect. The judgment of the court limiting a time for the exercise by Mrs. Smith of a right to redeem was but a barren ceremony. "A decree in favor of a party without interest in the subject to be affected would be useless." Frink v. Branch, 16 Conn. 260, 268. The appealing defendant complains of the the validity of the assignment and transfer was and is one personal to her, and no other person is in a position to do so. She is a party defendant to this action. She has not chosen to question the title of these plaintiffs to the note and security sought to be enforced. On the contrary, she has chosen to remain silent and acquiesce in the validity of the title she attempted to give. The defendant Gault has no standing to act for her or to assert rights which are hers alone. foreclosure, notwithstanding it appeared that the plaintiffs had no other title to or interest in the mortgage note and security than that derived from an assignment and transfer for value from a married woman married prior to 1877 and at the time of the transaction living with her husband. The right of the defendant to thus challenge the plaintiffs' right to prosecute their action has already been noticed. It was not, however, well made. It is not distinctly found whether Mrs. Smith, the 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; McKelvey v. Creevey, 72 Conn. 464, 467, 45 Atl. 4, 77 Am. St. Rep. 321. The equitable title was in Mrs. Smith. Belden v. Sedgwick, 68 Conn. 560, 566, 37 Atl. 417. Upon the death of Mr. Smith in 1901, the trust terminated, and the legal title to all of Mrs. Smith's personalty vested in her, thus merging the legal and equitable estates and making her its absolute owner. Connecticut T. & S. D. Co. v. Security Co., 67 Conn. 438, 442, 35 Atl. 342. Whatever title or interest in the note and its security which Mrs. Smith undertook to transfer to these plaintiffs failed to pass to them by virtue of the transfer thus became upon the death of her husband vested in her without restraint upon her power of dominion and control over them on the part of anybody. If it be assumed, therefore, that her original assignment was ineffectual to carry a good title to these plaintiffs and that she would not be estopped from questioning that title, it certainly was in her power after her husband's death to confirm and ratify either expressly or by conduct the transfer she had previously attempted to make, and it is still in her power so to do. In any event, the right to challenge plaint and to have been duly recorded was only an incident to the debt from which it could not be detached and distinct from which it had no determination value, and the holder or assignee of it must hold it at the will and disposal of the creditor. Huntington v. Smith, 4 Conn. 235, 237; Chamberlain v. Connecticut Central R. Co., 54 Conn. 472, 484, 9 Atl. 244. This mortgage, therefore, whether it remained in Mrs. Smith's hands or passed into other hands or had become destroyed remained until lawfully discharged security for the note in suit after the plaintiffs received it, and, when the plaintiffs established their ownership of the note and satisfied the court of its nonpayment, their right to avail themselves of such security as the mortgage afforded was sufficiently established. See Gen. St. 1902, § 4127. As the answer admitted the giving of the mortgage, its terms, and its record, a presumption arose that the condition thus created continued to exist which would be sufficient for the plaintiffs' purpose until something to indicate the contrary appeared. Gray v. Finch, 23 Conn. 495, 513. There is no error. The other Judges concurred. |