The demurrer to paragraphs one and three of the plea in abatement was properly sustained.
The court, upon issue joined upon paragraph two of the plea, found as a fact that the plaintiff was an inhabitant of this State at the time of bringing the action. There is nothing inconsistent in the finding and the evidence, that the plaintiff had resided for three years in New York, if he had come into the State with an intention of remaining before bringing the action. But the evidence showed that his residence in New York was not at any time intended to be permanent, and that he regarded this State as his place of residence.
The defendant's demurrer to the complaint was properly overruled. The court, in its memorandum on the demurrer, clearly and correctly stated the law of the case as follows: "A mortgagee, as such, has no attachable interest in the land mortgaged. If a mortgagee by absolute deed has an interest it must be as a result of the state of the record as interpreted under the recording Acts. The record, however, does not seem to be conclusive for all purposes. In the present *Page 348 instance the plaintiff at the time of the attachment had the equitable title to the entire beneficial interest in the land attached. An attaching creditor of the plaintiff Shaw could have held the land as against Gamble, the mortgagee, free of Gamble's lien before payment. Ives v. Stone, 51 Conn. 446. By the payment of the debt Gamble's lien as mortgagee was discharged and he held a mere naked legal title. The courts appear to hold that to entitle an attaching creditor to rely upon the record title in such cases the debt must have been created upon the faith of the apparent record title. No such claim can be maintained in this case because the defendant's attachment was made in an action of tort. The reasoning of the court in Waterman v. Buckingham, 79 Conn. 286 [64 A. 212], and the cases there cited, appears to be applicable to the facts of this case and to be conclusive." The facts found by the court, as above set out, are substantially the allegations in the complaint which were before the court on demurrer. None of the allegations of the complaint were directly denied by the defendant's answer.
The defendant has brought before this court all the evidence in the case, on a motion to correct the finding. Some of the facts asked to be inserted in the finding are immaterial, if found to be true; and some of the paragraphs contain simply statements of evidence. All of the testimony in the case, other than the documentary evidence, came from Shaw and Gamble, and the court evidently believed them, as it undoubtedly was justified in doing.
The matter of costs in this action was entirely within the discretion of the court.
There is no error.
In this opinion the other judges concurred.