[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff brought a complaint seeking a partition action. A partition action is an equitable action and those who seek equity must do equity. By choosing to foreclose its second mortgage on the two thirds interest mortgaged, it would cloud the title to the property by its unreleased first mortgage on the same two-thirds interest. This occurred, dissuading other bidders from bidding a reasonable price for the property. In fact, plaintiff's attorney chose to appear at the sale and raise this cloud to potential bidders. The net effect was to have the defendant, who has had nothing to do with the mortgage transactions, given a choice of bidding to save his one-third interest or being wiped out of his one-third interest, though having done nothing to create this situation.
The court has examined plaintiff's complaint and compares it to Form 704.35 in the Practice Book. The plaintiff failed to mention its claimed first mortgage as an encumbrance of record. It was therefore improper for Attorney Klein to make such a claim at the sale. The court therefore disapproves the sale and CT Page 239 all fees and expenses of the disapproved sale are to be charged to the plaintiff and paid by it within 30 days.
The court further orders that the plaintiff release the first mortgage of record or in the alternative, amend its complaint to claim its mortgage so that if put in issue, the question of merger may be resolved before another sale.
Plaintiff will pay to the Committee the sum of $1,241.04 for his expenses, and $1,500 for his Committee fee. The appraiser is allowed a $450.00 fee.
STODOLINK, JUDGE