Sec. 49-13. Petition for discharge of mortgages or of ineffective attachment, lis pendens or lien. Damages.
Sec. 49-13. Petition for discharge of mortgages or of ineffective attachment,
lis pendens or lien. Damages. (a) When the record title to real property is encumbered
(1) by any undischarged mortgage, and (A) the mortgagor or those owning the mortgagor's interest therein have been in undisturbed possession of the property for at least six
years after the expiration of the time limited in the mortgage for the full performance
of the conditions thereof, and for six years next preceding the commencement of any
action under this section, or (B) the promissory note or other written evidence of the
indebtedness secured by the mortgage is payable on demand and seventeen years have
passed without any payment on account of such note or other written evidence of indebtedness, or (C) the mortgage does not disclose the time when the note or indebtedness
is payable or disclose the time for full performance of the conditions of the mortgage
and ten years have passed without any payment on account of the promissory note or
other written evidence of indebtedness, or (D) the note or evidence of indebtedness has
been paid or a bona fide offer and tender of the payment has been made pursuant to
section 49-8, or (E) the mortgage has become invalid, and in any of such cases no release
of the encumbrance to secure such note or evidence of indebtedness has been given, or
(2) by a foreclosed mortgage and the mortgagor has made a bona fide offer and tender
of payment of the foreclosure judgment on or before the mortgagor's law day and the
mortgagee has refused to accept payment, or (3) by an attachment, lis pendens or other
lien which has become of no effect, the person owning the property, or the equity in the
property, may bring a petition to the superior court for the judicial district in which the
property is situated, setting forth the facts and claiming a judgment as provided in this
section. The plaintiff may also claim in the petition damages as set forth in section
49-8 if the plaintiff is aggrieved by the failure of the defendant to execute the release
prescribed in said section.
(b) The petition shall be served upon all persons interested in the mortgage, attachment, lis pendens or other lien in the manner provided by law for process in civil actions
and, in any action where the parties who may have an interest in the property and should
be made parties thereto cannot be located by and are unknown to the petitioner in the
action, the petitioner or the petitioner's attorney shall annex to the petition in the action
an affidavit stating that the petitioner does not know who the interested parties are or
where they reside, or, if the party interested in the property is a corporation whose
corporate existence has been legally terminated, or the corporation is no longer in existence or doing business, and the petitioner or the petitioner's attorney states that fact in
an affidavit, the court to which the action is brought or the clerk, assistant clerk or any
judge thereof may make such order relative to the notice which shall be given in the
cause as the court, clerk, assistant clerk or judge deems reasonable.
(c) Such notice having been given according to the order and duly proven, the court
may proceed to a hearing of the cause at such time as it deems proper, and, if no evidence
is offered of any payment on account of the debt secured by the mortgage within a period
set out in subsection (a) of this section, or of any other act within such a period as
provided in said subsection (a) in recognition of its existence as a valid mortgage, or if
the court finds the mortgage has been satisfied but no release given as evidence of such
satisfaction, or if the court finds that a bona fide offer and tender of payment of the
foreclosure judgment or mortgage has been made and refused, or if the court finds the
attachment, lis pendens or other lien has become of no effect, the court may render a
judgment reciting the facts and its findings in relation thereto and declaring the mortgage,
foreclosure judgment, attachment, lis pendens or other lien invalid as a lien against the
real estate, and may order payment of any balance of indebtedness due on the mortgage
or foreclosure judgment to the clerk of the court to be held for the benefit of the mortgagee
or the persons interested and to be paid to the mortgagee by the clerk of the court upon
application of the mortgagee or persons interested following the execution of a release
of mortgage.
(d) Upon deposit of the balance of indebtedness with the clerk, such judgment shall
issue, which judgment shall, within thirty days thereafter, be recorded in the land records
of the town in which the property is situated, and the encumbrance created by the mortgage, foreclosure judgment, attachment, lis pendens or other lien shall be null and void
and totally discharged. The town clerk of the town in which the real estate is situated
shall, upon the request of any person interested, endorse on the record of the encumbrance or lien the words "discharged by judgment of the Superior Court", and list the
volume and page number in the land records where the judgment is recorded.
(1949 Rev., S. 7123; 1959, P.A. 425; 1969, P.A. 595, S. 2; 1971, P.A. 536; P.A. 78-280, S. 2, 127; P.A. 79-602, S. 72;
P.A. 95-102, S. 4; P.A. 03-74, S. 1.)
History: 1959 act added provision re invalidity of mortgage as lien against real estate when title remains encumbered
by undischarged mortgage and mortgagor or those owning his interest have been in possession of property for 60 years
after time limited in mortgage for performance of its conditions; 1969 act clarified provisions re passage of 17 years, re
failure to give release and re attachments, lis pendens or other liens of no effect and deleted provision added by 1959 act;
1971 act added provisions re foreclosure and clarified provisions re court action; P.A. 78-280 replaced "county" with
"judicial district"; P.A. 79-602 divided section into Subsecs. and restated provisions but made no substantive changes;
P.A. 95-102 changed requirement of undisturbed possession from 17 to 6 years and made technical changes; P.A. 03-74
amended Subsec. (a)(1)(C) by changing time period from 17 years to 10 years and made technical changes.
See Sec. 7-34a re town clerks' fees.
Does not declare mortgage invalid; merely gives court right to declare it invalid under proper circumstances. 131 C.
38. This is not a statute of limitations. Id. Plaintiff held entitled to have mortgage declared invalid. 134 C. 420. Cited. 140
C. 474. Statute does not apply to those who recognize existence and validity of encumbering mortgage. 156 C. 49. Inequitable release of lis pendens, when. 162 C. 26. The procedure used by defendant in seeking to have his lis pendens discharged
and the granting by the court of defendant's motion does not meet the essential conditions prescribed. 165 C. 675. Cited.
188 C. 477. Cited. 223 C. 419.
It is six years of undisturbed possession that is crucial to obtaining relief under section, not six years of possession by
one owner; therefore tacking prior owner's period of possession to party's period of possession is permitted to fulfill the
six-year requirement. 81 CA 808.
Cited. 16 CS 257.
Subsec. (c):
Because plaintiffs' properties were not encumbered by the notices of lis pendens, they could not properly invoke court's
authority under subsec. to discharge the lis pendens as liens against the properties. 77 CA 276.