at common law "[t]o constitute abandonment there must be an intention to abandon or relinquish accompanied by some act or omission to act by which such intention is manifested."
How later courts described this case
- at common law "[t]o constitute abandonment there must be an intention to abandon or relinquish accompanied by some act or omission to act by which such intention is manifested."
Written by the judges who cited it.
The opinion
Jennings, J.
(dissenting). The trial court found for the defendants on the ground of merger, estoppel and abandonment. There was no merger because when Isadore Glotzer purchased the equity of redemption from Wax, the judgment lien of Schumann intervened between the Glotzer mortgage and Wax’s equity. To have a merger the greater and lesser estate must coincide in the same person and the same right without any intermediate estate. 2 Jones, Mortgages (8th Ed.) § 1080. “A merger is not caused by the holder of part of a mortgage buying the equity of redemption.” 19 R. C. L., p. 486.
Carpenter
v.
Gleason,
58 Vt. 244, 248 , 4 Atl. 706 . There are no affirmative acts on which an estoppel can be based. Estoppel can be. based on silence only when there is a duty to speak.
Taylor
v.
Ely,
25 Conn. 250, 258 ; 21 C. J. 1150; 9 R. C. L., p. 692. The facts disclose no such duty here.
Abandonment is defined in the majority opinion. The determinative element is the intent.
Kievman
v.
Grevers,
122 Conn. 406, 409 , 189 Atl. 609 . Abandonment only applies to easements and incorporeal
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hereditaments. 3 Washburn, Real Property (6th Ed.) § 1888; 25 Lawyer and Banker 308 (S-D ’32). Our ease of
New York, N. H. & H. R. Co.
v.
Cella,
88 Conn. 515, 522 , 91 Atl. 972 , illustrates its application to easements.
Peck
v.
Lee,
cited in the majority opinion, appears to stand alone, not only in Connecticut but in this country. That aside, it differs from the present case in that the mortgagee destroyed the mortgage and note with the intention of abandoning his lien. Idem, p. 377. The facts here much more nearly resemble those in
Ensign
v.
Batterson,
68 Conn. 298 , 36 Atl. 51 . A junior mortgagee was omitted from a decree of foreclosure although his mortgage was duly recorded. He knew that he was not foreclosed but stood by for fourteen years, relying on the record of his mortgage, while the property was twice sold and finally built upon. He “was under no obligation to give any other notice of the existence of his mortgage to prior incumbrancers or their grantees, than that afforded by the land records of the town.” Idem, p. 306. The vitality and reality of the title of a mortgagee is further illustrated by the fact that though action on the note may be barred by the Statute of Limitations this will not necessarily bar foreclosure.
Downey
v.
Moriarty,
81 Conn. 442, 445 , 71 Atl. 581 . See also
Beach
v.
Osborne,
74 Conn. 405 , 50 Atl. 1019 .
Assuming that a mortgage can be abandoned, there was, in my opinion, no evidence whatever of an intent to abandon by the New York Glotzer and insufficient evidence on the part of the Hartford Glotzer. I think the judgment should be reversed.