Opinion
No. CV 04 0409091S
January 27, 2005
MEMORANDUM OF DECISION ON MOTIONS TO RECONSIDER
On September 21, 2004, this court issued a decision denying the parties' motions for summary judgment. Both parties filed motions to reargue. The court grants these motions to reargue, and after further consideration, the court's decision denying the parties' motions for summary judgment is reaffirmed.
As the court explained in its earlier memorandum, the plaintiff, Ralph Young, seeks to foreclose a mortgage executed by the defendant William Fellows. The mortgage has a "due on sale clause" which provides that "in the event of a refinance . . . or sale of this property, the mortgage will be paid off." In January 1999, William Fellows quit-claimed the mortgaged property to his wife, defendant Kathleen Fellows, for "one dollar and other good and valuable consideration." The plaintiff views this transfer as a sale in violation of the "due on sale clause," and as a consequence, he accelerated the debt and instituted this foreclosure action after Mr. Fellows failed to make payment.
The defendants claim that there was in fact no consideration for the transfer, and therefore, the transfer of the property from Mr. Fellows to his wife does not constitute a sale within the meaning of the mortgage. For the reasons expressed in this court's earlier decision, the court finds the existence of material issues of disputed fact regarding the defendants' contentions on this issue that preclude summary judgment.
The plaintiff claims that because the phrase "one dollar and other good and valuable consideration" is plain and unambiguous on its face, the defendants are estopped from contesting the existence of a transfer for consideration, and in turn, they are estopped from contesting the existence of a sale within the language of the mortgage. After further consideration of the issue, the court again concludes that in the context of the present controversy, the meaning of this legal term of art is not so plain or established to support summary judgment.
It is the construction of the parties' mortgage contract that is the primary issue here, not the construction of the deed to which the plaintiff is not a party. Therefore, the deed, in the context of this dispute, is no more than evidence that a "sale" within the meaning of language of the mortgage took place, and based on the affidavits filed by the defendants, that evidence is disputed.
The plaintiff relies on case law holding that a grantor who has executed a deed is estopped from disputing the facts contained in it. See Billings v. McKenzie, 87 Conn. 167, 620, 87 A. 344 (1913) ("A maker of a deed is bound by the recitals therein."); Hackert v. Edwards, 22 Conn.Sup. 499, 507, 175 A.2d 381 (1961) ("A grantor who has executed a deed is estopped from disputing not only the deed itself but every fact which it recites.") This maxim, however, has been applied for the benefit of the grantee and the grantee's successors. Id. Again, the plaintiff is not a party to the deed, and therefore, he is not entitled to the same benefits of the transaction as one who participated in the bargaining process or one who acquires rights as a successor or assign.
This aspect of the rule is expressly stated in the case relied on by the plaintiff, Hodges v. Beardsley, 269 Ala. 280, 282, 112 So.2d 482, 483 (1959): "The principle is well settled that as between the parties to a deed reciting a valuable consideration, the parties to a deed reciting a valuable consideration, the grantor, in the absence of mistake, fraud or duress, is estopped to deny the recitation." (Emphasis added.)
Therefore, for the foregoing reasons, the parties' motions to reargue are granted and the court's decision denying the parties' motions for summary judgment is reaffirmed as the order of the court.
So ordered.
Stevens, J.