Opinion
File No. 43887
Curtis, Brinckerhoff Barrett, Attorneys for the Plaintiff.
Mernstein Weissman; Louis M. Altman; Attorneys for the Defendant.
Motion that plaintiff, first mortgagee, be required to account for rents collected from occupants of foreclosed premises; that an accounting was not asked before the entry of judgment does not militate against the entertainment of the motion.
MEMORANDUM FILED JUNE 25, 1935.
This motion is occasioned by the fact that the plaintiff, first mortgagee has been in possession of the foreclosed premises, collecting the rents from occupants of same.
After it had previously been extended, the day of redemption passed on June 25 and the next succeeding day or days fixed in the judgment.
On June 7th, 1935 the moving defendant who was the holder of a mortgage subject to the plaintiff's, made the instant motion.
It is well settled that a mortgagee in possession must account to the mortgagor for rentals collected by him while in possession. Hartford Realization Co. vs. Traveler's Insurance Co. 117 Conn. 218, 228. Desederios vs. Iadonisi, 115 Conn. 652, 654.
The same equitable considerations which are accountable for the rule stated, inhere in the relationship which a subsequent mortgagor or other lienee bears to the mortgaged premises.
Nothing in the fact that an accounting was not asked before the judgment was entered militates against the entertainment of the motion subsequent thereto.
To hold otherwise would be to conclude that a receiver or mortgagee in possession would be exempt from accounting for rentals collected by him subsequent to the day of judgment and pending the passing of the final day of redemption.
It is our accepted practice, as, of course, it must be, in the case of receivers of rents that the accounting be made and distribution ordered after the day of redemption has expired. As a matter of practicability, it could not be otherwise.
By analogy the same rule should apply to a mortgagee in possession.