Opinion
(11291)
Argued December 10, 1992
Decision released January 26, 1993
Action to foreclose a mortgage on certain real property, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, Hon. Robert Satter, state trial referee, granted the plaintiff's motion to strike the special defenses filed by the defendants Herbert Farrah et al.; thereafter, the matter was tried to the court, Freed, J.; judgment of strict foreclosure, from which the defendants Herbert Farrah et al. appealed to this court. Reversed in part; further proceedings.
Richard B. Laschever, for the appellants (defendants Herbert Farrah et al.).
Raymond F. Parlato, for the appellee (plaintiff).
The defendants Herbert Farrah and Aynesse A. Farrah appeal from the trial court's judgment of default entered against them in a foreclosure action. This case arises out of the following facts. General Leasing Corporation conveyed property at 250 Kenyon Street in Hartford to Kenyon Manor Corporation by warranty deed dated February 29, 1988, subject to the rights of the defendants "as tenants in possession with a claim of right."
The named defendant and the defendant Rhonda McDonald Farrah are not involved in this appeal. For purposes of this decision Herbert and Aynesse A. Farrah shall be referred to as the defendants.
On March 24, 1988, Kenyon Manor Corporation (Kenyon) executed a note in the amount of $300,000 and a mortgage deed for the property on Kenyon Street in favor of the Willimantic Savings Institute now known as The Savings Institute. The note was also signed by Rhonda McDonald Farrah. When Kenyon defaulted in its payments, the plaintiff instituted this foreclosure action. The defendants, claiming they held a life estate in the property, filed an answer denying that their interest was junior in right to that of the plaintiff. The defendants also raised a special defense alleging that they were tenants in possession with a claim of right. The special defense was struck by the trial court. The defendants objected to the trial court's decision to set the law days for them and moved for a determination of priorities. The trial court ordered strict foreclosure and set law days, including one for the defendants.
The defendants claim on appeal that the trial court (1) should not have stricken their special defense, (2) improperly defaulted them for their failure to plead and disclose a defense, and (3) improperly set the law days. The defendants do not contest that the mortgage is in default. Rather, they argue that their rights are not junior to those of the plaintiff and, therefore, that they possess a priority over the mortgage.
Our examination of the record reveals that the trial court never acted on the defendant's motion for determination of priorities, which would have entailed deciding what the defendants' interests were and whether they were junior or senior interests in relation to the mortgage. The trial court should have conducted an evidentiary hearing on this motion. Thus, we remand the case for further proceedings.