Standrod T. Carmichael et al. v. John J. Stonkus et al. (2011)

DECISION RE MOTION FOR ORDER OF POSSESSION AND EXECUTION OF EJECTMENT, # 275

After a four-day trial, on May 16, 2010, the court found in favor of Margaret Carmichael Brushie ¹ on her claim of quiet title pursuant to General Statutes § 49–31, and found that she is the sole owner of record title and fee simple to property known as 330 Stonegate Road, Southington, Connecticut.   The court found, inter alia, that Stonkus had wrongfully, and with fraudulent intent, converted the property from Brushie.   Brushie is now moving for an order of possession and execution of ejectment, pursuant to General Statutes § 49–22, as well at the court's inherent authority to enforce its own orders.

General Statutes § 49–22(a) provides, in pertinent part:

In any action brought for the foreclosure of a mortgage or lien upon land, or for any equitable relief in relation to land, the plaintiff may, in his complaint, demand possession of the land, and the court may, if it renders judgment in his favor and finds that he is entitled to the possession of the land, issue execution of ejectment ․ provided no execution shall issue against any person in possession who is not a party to the action.

After a review of the original cross complaint filed against Stonkus, there was no request for an order of ejectment, or a demand for possession of the land.   Although this action is not an action for foreclosure of a mortgage, the court is not prepared to enter findings or relief that was not originally requested.   In each of the cases cited by Brushie as authority for the court to enter such an order of ejectment, the party requesting such relief had initially brought the action as an action of ejectment, or had requested it as relief.  “The vesting of title in the mortgagee does not automatically carry with it the right to possession of the premises.   The foreclosing mortgagee has two options for obtaining possession of the premises from a tenant:  (1) name the tenant as a party in the foreclosure action and obtain a judgment of ejectment, pursuant to General Statutes § 49–22;  (2) after obtaining title, proceed with a summary process action, pursuant to § 47a–23.”   Federal Home Loan Mortgage Corp. v. Vansickle, Superior Court, judicial district of Danbury, No. SP9707835 (July 30, 1997) [20 Conn. L. Rptr. 207].   See Franchi v. Farmholme, Inc., 191 Conn. 201, 215–16, 464 A.2d 35 (1983) ( “Indeed in an action of ejectment if the plaintiff's legal title is not disputed, that title, in the absence of an agreement to the contrary, would draw to it the right to immediate possession and the plaintiff would be entitled to judgment as a matter of law”).

The motion for order of possession and execution of ejectment is denied.

Swienton, J.

FOOTNOTES

FN1. The original action was a foreclosure action brought by the named plaintiffs, Standrod and Marietta Carmichael, against the defendants, John Stonkus and Margaret Carmichael Brushie.   Stonkus then filed a counterclaim against the original plaintiffs.   Brushie filed a cross complaint against Stonkus, and Stonkus filed a counterclaim to Brushie's cross complaint.   For a more detailed procedural and factual history, see the court's memorandum of decision dated August 13, 2010..  FN1. The original action was a foreclosure action brought by the named plaintiffs, Standrod and Marietta Carmichael, against the defendants, John Stonkus and Margaret Carmichael Brushie.   Stonkus then filed a counterclaim against the original plaintiffs.   Brushie filed a cross complaint against Stonkus, and Stonkus filed a counterclaim to Brushie's cross complaint.   For a more detailed procedural and factual history, see the court's memorandum of decision dated August 13, 2010.

Swienton, Cynthia K., J.