Opinion
No. CV07-5005171S
December 10, 2008
MEMORANDUM OF DECISION
On July 23, 2007, the plaintiffs filed a complaint asking the court to order a partition sale of two parcels of real property owned by the plaintiffs and the defendants located at 86 Scott Road and 67 Summit Road in Prospect Connecticut, pursuant to Connecticut General Statutes § 52-495. On September 4, 2007, the parties filed a joint motion requesting the properties be sold at a partition sale. On September 17, 2007, the court, Agati, J., granted the motion for sale and ordered the property to be sold on December 1, 2007 at 12:00 noon and appointed Attorney Jonathan Newman of Waterbury to be the Committee. The court found the value of the property to be $1,975,000.00. The court ordered the successful bidder to pay a 10 percent deposit of $197,500.00. The committee pursuant to its orders advertised the sale in the Waterbury Republican-American newspaper on 11/18/07 and 11/25/07. The Scott Road property was advertised as having 87.86 acres of vacant unimproved land with a frontage on Scott Road. The 67 Summit Road property was advertised as having 24.73 acres of unimproved land with limited frontage on Summit Road. On December 1, 2007, at 12 Noon, the Committee held the sale at 67 Summit Road. Four bidders appeared and were accepted as qualified by the Committee. The bidding started at $450,000.00 and continued until the final bid of $l.200.000.00 was made by MALHLER REALTY ADVISORS INC. (MRA). Upon completion of the bidding, the successful bidder, Keith Mahler, President of Mahler Realty Advisors Inc., signed a Bond for Deed with the Committee, tendered the deposit of $197,500.00 and agreed per the Bond for Deed that the sale would be completed within 30 days of the court's approval of the sale." The court, Agati, J., approved the Committee's report and sale on December 31, 2007. On January 17, 2008, the successful bidder, MRA, filed a motion to vacate the court's approval of the sale and requested a return of the deposit on the grounds that the real property subject to this partition action is substantially different from the real property described in the Public Auction Legal Notice and the legal description in the Committee Deed. On February 11, 2008, the successful bidder was made a party defendant (#106). On March 17, 2008, the plaintiffs and original defendants filed a motion requesting a new sale date as the successful bidder, Mahler, had failed to complete the purchase.fn1 On June 18, 2008, the original plaintiffs and defendants filed a motion to reopen the judgment claiming that it would not be in the best interests of the parties to sell the property by auction.fn2 On August 22, 2008, the original plaintiffs and defendants filed a motion for order (#110) requesting either specific performance or a forfeiture of the deposit by MRA. On November 7, 2008, MRA filed a memorandum in support of its motion to vacate, to which the plaintiffs and defendants filed a reply brief dated November 12, 2008. The court conducted an evidentiary hearing on November 13, 2008.
The clerk's file indicates no action was ever taken on this motion #108.
The clerk's file indicates no action was ever taken on this motion #109.
Defendants' exhibit D is a series of deeds for this property going back to 1883 including the deed from Plumb to Manthey, wherein the description is virtually the same.
The question before the court is when, and on what basis or criteria may a successful bidder in a partition sale be allowed to void the sale.
The principal argument made by MRA in its motion to vacate the sale is that the property descriptions found in the advertisement, the appraisal and the one attached to the committee deed are different and thus misleading. MRA also claims based on the descriptions, the Scott Road property is landlocked.
The descriptions found in the legal advertisement are as follows:
67 Summit Road which contains 24.73 acres of vacant land with limited Frontage on Summit Road. This property is identified as lot 67 on the Prospect Assessor's Map #109.
86 Scott Road which contains 87.86 acres of unimproved land with frontage on Scott Road. This property is identified as lot 86 on the Prospect Assessor's Map # 109.
This description is the same as the one found on page two of the appraisal. On page six of the appraisal, the following description is found:
67 Summit Road
This parcel consists of approximately 24.73 acres of Industrial zoned land located with 50 feet of frontage on the west side of Summit Road. The Property is irregular in shape and rises steeply from road frontage. The entire site is heavily wooded, with evidence of rock outcropping. In addition to the access off Summit Road, the property can also be accessed from the terminus of Peter Gilkui Road. Further, this parcel abuts the rear of the third parcel which is the subject of this report known as 86 Scott Road.
86 Scott Road
This parcel consists of approximately 87.86 acres of Industrial zoned land, located with approximately 620 feet of road frontage on the east side of Scott Road, where Maria Hotchkiss Road intersects with Scott Road. The site is slightly below grade at road frontage and then runs generally level. This is an irregular shaped parcel with the bulk of the land area located to the rear where it abuts the other two parcels which are the subject of this report.
The third description which is attached to the Committee's deed describes the property as follows:
FIRST PARCEL 67 SUMMIT ROAD
All that certain pieces or parcel of land, with all the improvements thereon, situated in the Town of Prospect, County of New Haven, State of Connecticut, bounded and described as follows:
NORTHERLY — on land now or formerly of Vendal Velesak
EASTERLY — on land now or formerly of Domenic and Teresa Ciriello Ciarlo,
SOUTHERLY — 195 feet, more or less, on land now or formerly Eleanor Lester Vredenburgh; again
EASTERLY — on land now or formerly of Eleanor Lester Vredenburgh;
NORTHERLY — 88.7 feet and 247.6 feet on land now or formerly of Eleanor Lester Vredeenburgh, again
EASTERLY — on Summit Road
SOUTHERLY — 231.3 feet and 150 feet on land now or formerly of Robert Perry Lee; again
EASTERLY — on land now or formerly of Robert Perry Lee; again
SOUTHERLY — on land now or formerly of Alice Larson Spellman; again
EASTERLY — 300 feet, more or less, on land now or formerly of Alice Larson Spellman, again
SOUTHERLY — 115 feet, more or less, on land now or formerly of Mildred Lillian Miller; again
EASTERLY — on 350 feet, more or less, on land now or formerly of Mildred Lillian Miller; again
NORTHERLY — 550 feet, more or less, on land now or formerly of Mildred Lillian Miller; again
EASTERLY — on highway Summit Road; again
SOUTHERLY — on land now or formerly of Elmer W. Griswold;
WESTERLY — on old Highway.
Excepting therefrom those parcels conveyed by the Estate of Alexander E. Manthey as set forth in an Administrator's deed to John Manthey recorded in Volume 24, Page 178 of the Prospect Land Records.
SECOND PIECE 86 SCOTT ROAD
All that certain piece or parcel of land, with all the improvements thereon, situated in the Town of Prospect. County of New Haven, State of Connecticut, bounded and described as follows:
NORTHERLY — on land now or formerly of David M. Plumb;
EASTERLY — on abandoned highway
SOUTHERLY — on land now or formerly of George H. Cowdell;
WESTERLY on land now or formerly of David M. Plumb, and land now or formerly of William S. Strong, and land now or formerly of Thomas H. Hayes containing 60 acres, more or less, and commonly known as the major portion of the Martin Land, excepting from said Martin Land a strip of land along the northerly side thereof adjoining the land now or formerly of Thomas H. Hayes and David M. Plumb of equal width in the east and west to make 5 acres, more or less, See Note 1.
Being a portion of the premises conveyed by the Estate of John Manthey to PHOEBE KORN, FRANK KORN, ALEXANDER KORN, FLORENCE LESLIE AND BEATRICE MILLER ERIK in a certificate of devise dated and recorded August 16, 1956 in Volume 26, page 527 of the Prospect Land Records.
See Certificate of Change of Name Beatrice M. Erk to Beatrice Erk Cruikshank dated October 20, 1965 and recorded October 21, 1965 in Volume 39, page 330 of the Prospect Land Records.
See certificate of Devise from the Estate of Beatrice E. Cruikshank to Clarence A. Miller and Mark Miller dated May 10, 2004 and recorded May 19, 2004 in Volume 494, page 17 of the Prospect Land Records.
See also Certificate of Notice for the Land Records-Alexander Korn died December 25, 2003 in Cheshire, Intestate, Attorney Lisa Lugauskas Administratrix c.t.a. dated January 25, 2005 recorded February 14, 2005 in Volume 518 at page 121 of the Prospect Land Records.
Frank Korn died in Fort Lauderdale, Florida on August 23, 1989, according to the records of the Cheshire Probate Court.
See Certificate of Devise from the Estate of Florence M. Leslie to Marjorie Hunter and Kenneth Leslie dated June 10, 1992 and recorded July 20, 1992 in Volume 205, page 219 of the Prospect Land Records.
And see Certificates of Mutual Distribution from the Estate of Phoebe M. Korn to Estate of Francis L. Korn and Nancy Weoly dated October 8, 2003 and recorded October 14, 2003 in Volume 472, pages 271-272 of the Prospect Land Records.
And from the Estate of Francis L. Korn to Kevin L. Korn, Randal L. Korn, Ricky L. Korn, Karen L. Korn and Laura L. Morse in Certificates of Descent dated July 7, 2004 and recorded July 12, 2004 in Volume 499, page 246 and Volume 499, page 247 of the Prospect Land Records.
The court notes that this description is the same as the one attached to the complaint and anyone who reviewed the court file would be aware of this property description. The legal description of both parcels are ancient. That is to say, that each description is more than thirty (30) years old. (Deeds in excess of thirty years of age are deemed to be ancient deeds.) Fishbach v. Walker, 1996 WL 106776, Conn.Super., CV92-0335791, Barnett J., February 26, 1996. The last warranty deed in the chain of title to the Scott Road property is a deed from David Plumb to Alex A. Manthey recorded June 14, 1912, in Volume 8, page 298 of the Prospect Land Records. This deed states the property consists of 50 acres, more or less.fn3 Since that time the property has been transferred by Certificates of Devise. Though MRA's motion addresses a discrepancy in the acreage of both parcels, the focus of MRA's argument and evidence was on the variances in the descriptions of the Scott Road property. MRA's contention is that it was misled by the property description in the advertisement and the appraisal. Both of these descriptions indicate the property has frontage on Scott Road. The description of the property in the Committee Deed however, does not mention Scott Road. MRA's position is that because the description attached to Committee Deed does not mention the property has frontage on Scott Road, there is a real question as to whether or not the property is landlocked. The plaintiff's position is that because the property has not been transferred outside the family for so long, the legal description simply needs to be updated, and that the property does have approximately 620 feet of frontage on Scott Road. On this question the plaintiffs presented the testimony of Mr. Robert Jackson, a licensed land surveyor. Mr. Jackson testified that the property is not landlocked and that it has frontage on Scott Road. As proof thereof, the plaintiffs produced an A-2 survey of the property (Plaintiff's Exhibit E) which shows the property does abut Scott Road. Though it appears on the map, there is a narrow strip of land between the property and Scott Road, this is simply the road right of way. Mr. Jackson testified that the right of way is 50 feet wide but the paved portion of the road is approximately 30 feet. Though this map, Exhibit E, is not recorded on the Prospect Land Records, there is a recorded map of this property, Plaintiffs' Exhibit F, dated March 6, 1970 and recorded March 7, 1979, in Volume 8, at page 20 of the Prospect Map Records. This recorded map shows the property having frontage on Scott Road. Mr. Jackson further testified that any discrepancy in the property description could be cured by recording Exhibit E and updating the legal description. The court finds, from the evidence, that 86 Scott Road does have frontage on Scott Road and that it is not landlocked. Exhibit E shows the acreage to be 80.59 acres, or 7.27 acres less than represented. The court finds the discrepancy in the actual acreage to be of no consequence. The ordinary rule is that where land is particularly described by metes and bounds and an enumeration of the quantity of acres is added, the latter is merely a matter of description, and a covenant for quantity will not be implied therefrom, and the covenants for title will apply, not to any particular number of acres, but only to the land contained in within the designated boundaries; it is only when it is apparent that the deed intended to assure a particular quantity of land to the purchaser that a covenant as to quantity can be applied. Aherns v. Drew, 110 Conn. 546, 547-48 (1930).
Exhibit E is an A-2 survey dated November 23, 2005 of the Scott Road property prepared for Mr. Robert Capanna, who was one of the unsuccessful bidders on this property, sheet 2 shows the Scott Road property. This map does show both parcels.
The court notes the defendant MRA did not present any evidence that anyone else claims ownership of the strip of land between the surfaced road and the plaintiffs' property, nor did it present any evidence that this strip of land appears in any abutting landowners chain of title.
MRA's next argument is that it was misled by the Committee's advertisement and the appraisal in the court's file. MRA argues that anyone looking at the court file would be misled by the description of the property and that it, or anyone who examined the court file had a right to rely on the appraisal, and that the plaintiffs had a duty to provide the court with accurate information as to the description of the property. In this case, Mr. Mahler testified that he did review the court file and in particular the appraisal.
The plaintiffs' position is that judicial sales are governed by the rule of caveat emptor. The plaintiffs' arguments are, 1) that the newspapers notice expressly states, "the property will be sold "as is" without representations of any kind, free and clear of liens and encumbrances not foreclosed by said judgment and of all claims subsequent in right thereto, but subject to all prior encumbrances, easements and restrictions of record including but not limited to any inchoate liens and taxes owed to the Town of Prospect. PROSPECTIVE PURCHASERS SHOULD EXAMINE LAND RECORDS PRIOR TO AUCTION. Property is purchased in "as is" condition and subject to the approval of the Superior Court, if the purchaser is unable to complete the sale within said thirty day period, the deposit shall be forfeited," and 2) that paragraph three (3) of the Bond for Deed states; The property is being sold "as is." No warranties or representations, whether express or implied, are made as to the condition of the property. The buyer is purchasing the property based on the buyer's own information and knowledge of the property acquired through the Buyer's own endeavors and not upon any representations or comments by the Sellers, and 3) that the buyer in this case was a sophisticated real estate person. Mr. Mahler testified that he has been involved in the real estate business since 1980 when he joined his father in this company. He testified that MRA is involved in the development and management of commercial real estate, industrial real estate, apartment buildings and the mortgage business. He further testified before bidding on this property, in addition to reviewing the court file, he examined the Prospect Land Records, including the Assessor's Map. The court finds no merit to Mr. Mahler's argument that he was misled. Prior to bidding on the property, Mr. Mahler did considerable investigation and if Mr. Mahler did not have enough time to investigate the property, he should not have bid. It is generally held that judicial sales carry inherent risks, which is why they usually bring in less than would be expected at a private sale where these conditions are not present. New England Savings Bank v. Lopez, 227 Conn. 270, 630 A.2d 1010 (1993). The court finds that by bidding on this property, Mr. Mahler accepted the risks that accompanied that decision.
The plaintiff's final argument is that if there was a problem, MRA should have brought it to the court's attention at the time the sale was confirmed on December 31, 2007 by Judge Agati. MRA's response to that argument is that it did not become aware of the problem with property description until it received the proposed Committee Deed on January 10, 2008 from the Committee some 10 days after the sale was approved. Attorney Newman (the Committee) did testify that through an oversight, a description of the property was not attached to the Bond for Deed that was executed on December 1, 2008.
At the top of the proposed committee deed, Defendants' Exhibit C, the date 1/10/08 and the time 11:34 can be found, confirming it was not aware of the description problem until then 10 days after the sale was confirmed.
Ruling
A partition by sale, although a creature of statute, is an equitable action, and it is within the trial court's discretion to order a partition by sale. Geib v. McKinney, 224 Conn. 219, 228, 617 A.2d 1377 (1992). Accordingly, once the court has exercised its equitable jurisdiction by ordering a partition by sale, it also has discretion to approve or reject the sale. See Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988) (court of equity in foreclosure suit has discretion to accept or reject proposed sale); Jefferson v. Karpowicz, 10 Conn.App. 198, 200, 522 A.2d 322 (1987) (trial court's approval of partition sale proper where substantial compliance with court's order of sale and absent compelling circumstance to hold otherwise); 47 Am.Jur.2d, Judicial Sales, § 282 (1995). Thus, the standard for reviewing MRA's claim is whether the court abused its discretion in approving the sale. "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling." Geib v. McKinney, supra, 229. "It is generally recognized that the grounds which would warrant a court's refusal to approve a sale are fraud, misrepresentation, surprise or mistake." Jefferson v. Karpowicz, supra, 10 Conn.App. 200. MRA argues that the court should not have approved the sale because of (1) the discrepancies in the descriptions misled the bidders, and (2) the Committee failed to properly apprise the bidders of nature of the property. Whether the Committee made the alleged misrepresentations and, if so, whether they affected the final bid price are issues of fact. The court finds no evidence upon which it could base a factual finding that such misrepresentations were made by the Committee. Atty. Newman, the Committee, testified that prior to the sale, he reviewed the court file, and that the description he used for the newspaper advertisement came from the appraisal in the court file, that he used the forms provided by the court, and that he filed his report in accordance with the court's procedures.
The court finds, (1) the property was properly advertised, (2) that the buyer was aware the property was being sold without any warranties or representations, (3) that the property was being sold "as is," (4) that the buyer was a sophisticated buyer who conducted an investigation before bidding on the property, (5) that Mr. Mahler thoughtfully and purposely bid on the property, (6) that the property does have frontage on both Scott Road and Summit Road, (7) that the Committee has the right to rely upon the information in the court file and absent some information being brought to its attention, it has no duty to do independent investigation, (8) that the sale was conducted in accordance with the orders of the court and that the court did not err in confirming the sale.
The court finds that no fraud, misrepresentation, surprise or mistake occurred in this sale to warrant revocation of the sale.
For the above stated reasons, the defendant MRA's motion to vacate the sale is denied and the plaintiffs' motion for specific performance is granted. The successful bidder, MRA is ordered to complete the sale by 5:00 P.M. on January 16, 2009. Failure to complete the sale by that date shall result in a forfeiture of its deposit of $197,500.00
1 The court found the value based on an appraisal submitted by the plaintiffs from the appraisal firm of Nocera, Dillon and Diorio dated August 27, 2007, wherein the Scott Road property was valued at $1,406,000.00 and the Summit Road property was valued at $569,000.00 totaling $1,975,000.00.
2 Defendants' exhibit A is a copy of the Advertisement that occurred on 11/25/07.
3 A total of approximately 73 bids were made during the auction which lasted approximately 30 minutes.
The Bond for Deed was submitted to the court as Defendants' Exh. B.