City of Norwich v. Hubbard

Church, C. J. This is an application, by the city of Norwich, in the nature of a process of foreclosure, to enforce a lien claimed by said city, to secure the payment of $104.25, incurred as expenses under the third, fourth, fifth and sixth sections of the city charter, in grading, curbing and flagging a sidewalk, fronting the land and buildings of Charles J. Lanman, and of which he was supposed to be the owner and proprietor, and of which Amos -H. Hubbard, one of the respondents, was mortgagee. The petition, in which all the facts constituting the plaintiffs’ claim are detailed, is demurred to by Hubbard, the mortgagee, because it appears, from the allegations, that he did not receive any notice of the proceedings of the court of common council, whereby it is claimed that said lien was created. The sections of the charter referred to, in effect, provide that the common council of the city “ may order the proprietor or proprietors of the land and buildings fronting such sidewalks and gutters, at their own expense, to level, raise or form such sidewalks and gutters on their several fronts, &c., and may limit such time as they may deem reasonable, for levelling, raising or forming, or for flagging or paving such sidewalks, &c., and, if any proprietor or proprietors shall neglect to level, raise or form, flag or pave any such sidewalk, áse., said court of common council may employ some meet person to do the same, and liquidate the expenses thereof, and order the same to be paid by such proprietor, áse. And all such expenses and interest thereon, shall be a lien or real incumbrance upon the land and buildings; the payment thereof may be enforced in like manner as if said land and buildings were mortgaged to said city,” áse. The question raised by the demurrer of Hubbard is, whether he, as mortgagee of Lanman, by virtue of a mortgage, [594] anterior to all the proceedings detailed in the petition, was entitled to notice of them, or can be foreclosed of his rights, unless he pays the sum demanded, inasmuch as it is conceded, that no notice was ever given to him. The sections of the charter, to which reference has been made, do not, in terms, direct that notice of the preliminary proceedings should be given to anybody, but an order of the court of common council directed notice to Lanman, the mortgag'or, as the proprietor of the land and buildings, in front of which the improvements were made. - A mortgagee, out of possession, is not the proprietor of the mortgaged premises, and, in common parlance, is never spoken of as such, nor is he so recognized, in a legal sense. To be sure, he is said to have the legal title, and as against the mortgagor, and for the purpose of enforcing his rights, as mortgagee, he has such title. He can convey no beneficial interest in the land mortgaged, as separate and distinct from the debt; and he has no such interest in it as can be levied upon, and taken in execution, by his creditors. Although, in this state, we have holden, that, in a strictly legal sense, the mortgagee has a bare title, even after payment of the debt, if the law day had expired before, until a release deed is executed; yet this is rather a matter of policy, arising from our recording system, than from any other view of it. In truth, the mortgagee has only a lien, and can not be considered or treated as a proprietor or owner of the mortgaged estate. This view is corroborated by analogous cases. In laying out new highways, either by selectmen or by the county courts, or in repairing old ones, no provision is made by law, for notice to be given to mortgagees, nor, in practice, is this ever done. The interests of mortgagees are not regarded in these proceedings; they are necessarily connected with the interests of the mortgagor, and, in this respect, subject to them. However reasonable we may believe it to be, that a mortgagee should, by a timely notice, have an opportunity [595] of protecting his rights, which the mortgagor has neglected, yet, as neither the charter of the city nor any other law has provided for this, we can not require it, without the exercise of powers which we do not possess. It is sufficient, in order to create and enforce this lien, that the city has done everything required of it, by the charter and the law. The result is, that the judgment of the superior court is erroneous and must be reversed. In this opinion, the other judges concurred, except Waite, J., who tried the cause in the court below, and was disqualified. Judgment reversed.