Southport Congregational Church-United Church of Christ v. Hadley ( 2016 )

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SOUTHPORT CONGREGATIONAL CHURCH–UNITED
CHURCH OF CHRIST v. BETTY ANN HADLEY,
COEXECUTOR (ESTATE OF ALBERT L.
HADLEY), ET AL.
(SC 19398)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 15, 2015—officially released January 5, 2016
Daniel J. Krisch, with whom was Jeffrey F. Gostyla,
for the appellant (intervening defendant Cheekwood
Botanical Garden and Museum of Art).
John A. Farnsworth, for the appellee (plaintiff).
Opinion
ROBINSON, J. The principal issue in this certified
appeal is whether title to real property passed to a
buyer at the signing of a contract of sale under the
doctrine of equitable conversion, when the seller died
prior to the fulfillment or expiration of a mortgage con-
tingency clause in the contract. The decedent in the
present case, Albert L. Hadley, entered into a contract
for the sale of a certain parcel of real property to Evelyn
Winn. Before entering into the contract, the decedent
had specifically devised the property to the plaintiff,
Southport Congregational Church–United Church of
Christ (church), in his will. The defendant Cheekwood
Botanical Garden and Museum of Art (Cheekwood)
claims entitlement to the proceeds from the sale of the
property to Winn by the coexecutors of the decedent’s
estate, the defendants Betty Ann Hadley and Lee Snow,
as a result of a charitable pledge made by the decedent
prior to his death.1 Cheekwood appeals, upon our grant
of its petition for certification,2 from the judgment of
the Appellate Court reversing a judgment of the trial
court, which had held that title to the property passed
to Winn under the doctrine of equitable conversion at
the signing of the contract. Southport Congregational
Church–United Church of Christ v. Hadley, 152 Conn.
App. 282, 298–300, 98 A.3d 99 (2014). On appeal, Cheek-
wood claims that the Appellate Court improperly con-
cluded that equitable conversion did not apply because
the contract was fully enforceable against the decedent
at signing and could be terminated only by Winn within
a specified period if she could not obtain financing. We
agree and, accordingly, reverse in part the judgment of
the Appellate Court.3
The record reveals the following facts and procedural
history. On September 22, 2010, the decedent executed
a will specifically devising the property, which is
located at 504 Pequot Avenue in Southport, to the
church. One and one-half years later, on March 21, 2012,
the decedent contracted to sell the property to Winn.
The sales contract, which was the standard form real
estate contract provided by the Fairfield County Bar
Association,4 contained a mortgage contingency clause
stating: ‘‘This [a]greement is contingent upon BUYER
obtaining a written commitment for a loan . . . . [If]
BUYER is unable to obtain a written commitment for
such a loan . . . and if BUYER so notifies SELLER or
SELLER’S attorney, in writing, at or before 5:00 p.m.,
on April 16, 2012, then this [a]greement shall be null
and void . . . . If SELLER or SELLER’s attorney does
not receive such written notice . . . this [a]greement
shall remain in full force and effect.’’ The decedent
waived specific performance as a remedy under the
contract and agreed to retain Winn’s down payment as
liquidated damages in the event of Winn’s default.5 By
letter to Cheekwood’s president dated March 6, 2012,
the decedent pledged to donate the proceeds from the
sale to Cheekwood.6 The decedent died on March 30,
2012, nine days after signing the contract and before
Winn had obtained financing or the mortgage contin-
gency period had expired.
The decedent’s will was admitted to probate in New
York Surrogate’s Court on May 10, 2012.7 The coexecu-
tors applied for ancillary jurisdiction and authorization
to sell the property pursuant to General Statutes § 45a-
3258 in the Probate Court for the district of Fairfield.
Cheekwood filed a claim to the proceeds from the sale.
The Probate Court granted the coexecutors’ application
for ancillary jurisdiction and for authorization to sell
the property.9
The church appealed from the decision of the Probate
Court to the trial court, claiming that, because it was
the specific devisee of the property under the dece-
dent’s will, the coexecutors could not sell the property
without its consent pursuant to General Statutes § 45a-
428 (b).10 The coexecutors responded to the probate
appeal with an answer, special defense, and counter-
claim seeking authorization to sell the property. The
court granted Cheekwood’s motion to intervene. During
the pendency of this appeal, the Probate Court amended
its decree to require the coexecutors to obtain the
church’s consent before selling the property. The
church subsequently withdrew its probate appeal in
light of this amendment. The coexecutors’ counter-
claim, however, remained pending.
The coexecutors then filed a second action in the
trial court, in which they filed a separate application
seeking authorization to sell the property pursuant to
§ 45a-325. Cheekwood again intervened and submitted
a memorandum of law in support of the coexecutors’
application, contending that § 45a-428 did not apply
because the decedent’s interest in the property termi-
nated at the signing of the contract under the doctrine
of equitable conversion, leaving him with only an inter-
est in the expected proceeds from the sale at the time
of his death. In response, the church asserted that equi-
table conversion did not apply because of the unfulfilled
and unexpired mortgage contingency clause, and thus,
the decedent retained his interest in the property at the
execution of the contract, which passed to the church.
See Zanoni v. Lynch, 79 Conn. App. 309, 320, 830 A.2d
304 (‘‘title to real estate vests immediately . . . in a
deceased’s . . . devisees upon the admission of a will
to probate’’ [internal quotation marks omitted]), cert.
denied, 266 Conn. 929, 837 A.2d 804 (2003). After an
evidentiary hearing, the trial court granted the coexecu-
tors’ application for authorization to sell the property.
The court then denied the church’s motion to reargue,
and the church appealed from that judgment to the
Appellate Court under Docket No. AC 35289
With this appeal pending, Cheekwood moved for
summary judgment on the coexecutors’ counterclaim
in the probate appeal. Cheekwood contended that the
relief sought was identical to that which had already
been granted by the trial court and, thus, judgment
should be rendered in favor of the coexecutors. The
church opposed the motion, claiming, inter alia, that the
counterclaim had been rendered moot by the granting of
the coexecutors’ separate application for authorization
to sell the property in the second action. The trial court
rejected these arguments and granted Cheekwood’s
motion for summary judgment. The trial court denied
the church’s motion to reargue, and the church
appealed from that judgment to the Appellate Court
under Docket No. AC 36395.
The Appellate Court resolved the church’s appeals
together, because the central issue in both appeals—
whether title passed to the buyer at the signing of the
contract of sale via equitable conversion—was identi-
cal. Southport Congregational Church–United Church
of Christ v. Hadley, supra, 152 Conn. App. 291–92. The
church argued that equitable conversion did not apply
because the unfulfilled and unexpired mortgage contin-
gency clause prevented title from passing to Winn at
the signing of the contract. Id., 296–97. The coexecutors
and Cheekwood maintained in response that equitable
conversion occurred because the contract was specifi-
cally enforceable against the seller at the time of its
execution. Id., 297. The Appellate Court agreed with
the church that equitable conversion did not apply
because of the unfulfilled and unexpired mortgage con-
tingency clause. Id. The Appellate Court ultimately ren-
dered judgment reversing the trial court’s judgments,
and remanded the cases to the trial court with direction
to deny the coexecutors’ separate application to sell
the property, and to dismiss their counterclaim in the
probate appeal seeking the same relief as moot. Id.,
300. This certified appeal followed.11
On appeal, Cheekwood contends that the mortgage
contingency clause did not preclude the equitable con-
version of title because the parties intended for the
contract to be fully enforceable at signing, subject only
to the possible termination within a specified period
by Winn if she could not obtain financing. In response,
the church argues that the clause was an unsatisfied
condition precedent to the contract and, thus, the con-
tract was not yet enforceable and title could not have
passed to Winn. We agree with Cheekwood that the
mortgage contingency clause did not preclude the appli-
cation of equitable conversion, and that equitable title
passed to Winn at the execution of the contract.
We begin by setting forth our standard of review.
‘‘The determination of whether an equitable doctrine
applies in a particular case is a question of law subject
to plenary review.’’ Walpole Woodworkers, Inc. v. Man-
ning, 307 Conn. 582, 588, 57 A.3d 730 (2012). We simi-
larly review the intent of the parties to an unambiguous
contract de novo. See, e.g., FCM Group, Inc. v. Miller,
300 Conn. 774, 811, 17 A.3d 40 (2011).
‘‘[E]quitable conversion is a settled principle under
which a contract for the sale of land vests equitable
title in the [buyer].’’ (Internal quotation marks omitted.)
Salce v. Wolczek, 314 Conn. 675, 687, 104 A.3d 694 (2014).
‘‘Under the doctrine of equitable conversion . . . the
purchaser of land under an executory contract is
regarded as the owner, subject to the vendor’s lien for
the unpaid purchase price, and the vendor holds the
legal title in trust for the purchaser. . . . The vendor’s
interest thereafter in equity is in the unpaid purchase
price, and is treated as personalty . . . while the pur-
chaser’s interest is in the land and is treated as realty.’’
(Internal quotation marks omitted.) Id., 688. The doc-
trine is ‘‘rooted in the principle that equity views a
transaction as being completed at the time the parties
enter into the transaction, irrespective of whether a
formal exchange of legal title has taken place.’’ Id.
‘‘The foundation for the doctrine of equitable conver-
sion is [the] presumed intention of the owner, equity
regarding as done that which ought to be done.’’ (Inter-
nal quotation marks omitted.) United States v. O’Dell,
247 F.3d 655, 684 (6th Cir. 2001). The doctrine was
‘‘adopted for the purpose of carrying into effect, in spite
of legal obstacles, the supposed intent of a testator or
settlor.’’ (Internal quotation marks omitted.) Connelly
v. Federal National Mortgage Assn., 251 F. Supp. 2d
1071, 1074 n.3 (D. Conn. 2003). Equitable conversion
‘‘is not a fixed rule of law, but proceeds on equitable
principles that take into account the result to be accom-
plished. 27A Am. Jur. 2d Equitable Conversion § 1
[1996].’’ (Internal quotation marks omitted.) United
States v. 74.05 Acres of Land, 428 F. Supp. 2d 57, 62
(D. Conn. 2006).
Despite this apparent flexibility, the contract must
be enforceable for equitable conversion to apply; other-
wise, it cannot be said that the parties intended for
title to pass to the buyer at execution. See Francini v.
Farmington, 557 F. Supp. 151, 155 (D. Conn. 1982);
Hadgkiss v. Bowe, 21 Conn. App. 619, 620, 574 A.2d
1303 (1990). ‘‘The basis of [equitable conversion] is the
existence of a duty . . . .’’ Anderson v. Yaworski, 120
Conn. 390, 393, 181 A. 205 (1935). ‘‘[T]here must, in
fact, be a clear duty on the part of the seller to convey
the property, a duty enforceable by an action for spe-
cific performance.’’ Noor v. Centreville Bank, 193 Md.
App. 160, 167, 996 A.2d 928, cert. granted, 415 Md. 607,
4 A.3d 512 (2010), appeal dismissed, 417 Md. 500, 10
A.3d 1180 (2011); see also In re Walston, 190 B.R. 855,
859 (Bankr. S.D. Ill. 1996). The doctrine is ‘‘firmly linked
to the specific enforceability of the contract.’’ (Internal
quotation marks omitted.) Benedict v. United States,
881 F. Supp. 1532, 1548 (D. Utah 1995); see also Steele
v. Rosenfeld, LLC, 936 So. 2d 488, 493 (Ala. 2005); Parr-
Richmond Industrial Corp. v. Boyd, 43 Cal. 2d 157,
168, 272 P.2d 16 (1954); O’Brien v. Paulsen, 186 N.W.
440, 442 (Iowa 1922); Horton v. Horton, 2 N.J. Super.
155, 159–60, 62 A.2d 503 (Ch. 1948).
In accordance with this principle, the doctrine of
equitable conversion does not apply when the seller’s
duty to convey title is subject to a condition precedent.12
See In the Matter of Lefkas General Partners, 112 F.3d
896, 901 (7th Cir. 1997); In re Walston, supra, 190 B.R.
859; Noor v. Centreville Bank, supra, 193 Md. App. 167–
68. ‘‘A condition precedent is a fact or event which the
parties intend must exist or take place before there is
a right to performance.’’ Lach v. Cahill, 138 Conn. 418,
421, 85 A.2d 481 (1951). When the seller’s duty to convey
title is conditional, and does not arise at execution, the
buyer cannot immediately enforce the contract. See id.
Under such circumstances, it cannot be said that the
parties intended for title to pass to the buyer at signing.
See Parker v. Averett, 114 Ga. App. 401, 402, 151 S.E.2d
475 (1966); Noor v. Centreville Bank, supra, 167–68.
‘‘[E]quity can hardly regard that as presently done which
the parties . . . have agreed shall be done only in the
future.’’ Anderson v. Yaworski, supra, 120 Conn. 393.
For example, in Francini v. Farmington, supra, 557
F. Supp. 155, the United States District Court for the
District of Connecticut held that equitable conversion
did not apply when the contract was conditioned on a
town’s approval of the buyer’s application to subdivide
the lot.13 Title would have passed to the buyer ‘‘only
upon performance of specific conditions,’’ and thus, the
buyer’s interest in the property ‘‘never amounted to
more than an expectation . . . .’’ (Citation omitted.)
Id. Similarly, in Rockland-Rockport Lime Co. v. Leary,
203 N.Y. 469, 479–80, 97 N.E. 43 (1911), the Court of
Appeals of New York held that title did not pass to the
buyer at the signing of a lease when the buyer had
not yet exercised his option to purchase the property.
Because the seller had no duty to convey title until the
buyer exercised the option, equitable conversion did
not apply at signing. Id., 480.
If, however, the duty under the contract arises imme-
diately at execution, subject to a condition subsequent,
equitable conversion may apply. See Salce v. Wolczek,
supra, 314 Conn. 689 n.6 (‘‘preconditions in a sales con-
tract can delay the transfer of equitable interest until
those conditions are met’’ [emphasis added]). A condi-
tion subsequent creates a situation in which ‘‘an existing
right is cut off by the nonperformance of the condition
. . . .’’ Bulkley v. Norwich & Westerly Railway Co., 81
Conn. 284, 287, 70 A. 1021 (1908). Conditions subse-
quent do not delay the seller’s duty to convey title. See
Grant v. Kahn, 198 Md. App. 421, 431–34, 18 A.3d 91
(2011). Because the contract takes full force and effect
at execution, and the buyer immediately gains the right
to enforce the contract against the seller, nothing pre-
vents title from passing to the buyer at signing. See id.
For instance, in Grant v. Kahn, supra, 198 Md. App.
432, the Maryland Court of Special Appeals held that a
mortgage contingency ‘‘consist[ing] of conditions sub-
sequent’’ did not prevent title from passing to the buyer
at execution of a contract.14 The court noted that: (1)
the buyer could specifically enforce the contract against
the seller; (2) the contingency benefited the buyer, who
could remove it at any time; and (3) the seller had no
discretion not to convey the property at closing. Id.,
431–32. ‘‘Neither party took advantage of the conditions
permitting termination of the contract, so . . . the con-
tract continued in effect.’’ Id. The court added, ‘‘there is
no rule providing that the existence of any contingency
acts to prevent equitable conversion.’’ (Emphasis in
original.) Id., 434.
The Texas Court of Appeals similarly held in Parson
v. Wolfe, 676 S.W.2d 689, 692 (Tex. App. 1984), that
equitable conversion applied despite a mortgage contin-
gency clause when the seller died prior to closing.15 The
court rejected the notion that the clause was a condition
precedent to the contract, noting that the clause was
‘‘intended as a measure of the time that was reasonable
for the buyer’s performance, and not as a condition
that, if unfulfilled, would bar specific performance.’’ Id.
Thus, the relevant inquiry in the present case is
whether the parties intended for the mortgage contin-
gency clause to be a condition precedent to the dece-
dent’s duty to convey title. The proper interpretation
of the clause requires us to determine the intent of the
parties. Kakalik v. Bernardo, 184 Conn. 386, 393, 439
A.2d 1016 (1981). ‘‘The meaning properly to be ascribed
to [a] mortgage commitment clause [is] . . . to be
determined, as a matter of fact, from the language of
the contract, the circumstances attending its negotia-
tion, and the conduct of the parties in relation thereto.’’
Id. Like other contracts, though, the meaning of unam-
biguous language in a mortgage contingency clause is
determined as a matter of law. See, e.g., FCM Group,
Inc. v. Miller, supra, 300 Conn. 811.
We conclude that the parties did not intend for the
mortgage contingency clause to be a condition prece-
dent to the decedent’s duty to convey title. The unam-
biguous language of the clause states: ‘‘This [a]greement
is contingent upon BUYER obtaining a written commit-
ment for a loan . . . . [If] BUYER is unable to obtain
a written commitment for such a loan . . . and if
BUYER so notifies SELLER or SELLER’S attorney, in
writing, at or before 5:00 p.m., on April 16, 2012, then
this [a]greement shall be null and void . . . . If
SELLER or SELLER’s attorney does not receive such
written notice . . . this [a]greement shall remain in full
force and effect.’’ This language plainly and unambigu-
ously denotes the parties’ intention for the sale to pro-
ceed as planned unless Winn notified the decedent that
she could not obtain financing within twenty-one days.
Two phrases in the mortgage contingency clause, in
particular, support this conclusion. First, the clause
states that if Winn did not notify the decedent of her
inability to obtain financing within twenty-one days,
the contract would ‘‘remain in full force and effect.’’
(Emphasis added.) If the contract was not already in
effect, the use of the word ‘‘remain’’ would be inappro-
priate. Second, if Winn notifies the decedent that she
is unable to obtain financing, the contract ‘‘shall be null
and void . . . .’’ There would be no need to ‘‘void’’ or
‘‘nullify’’ anything if the contractual duty had not yet
arisen. Although the contract was ‘‘contingent upon
BUYER obtaining a written commitment for a loan,’’
read in complete context, this clause limits only Winn’s
duty to purchase the property, rather than the contract
in general.
We have previously interpreted several mortgage con-
tingency clauses and determined them to be conditions
precedent to the contract, but none of those cases
involved a possible application of equitable conversion,
and they do not control the present case. See Loda v.
H. K. Sargeant & Associates, Inc., 188 Conn. 69, 77–78,
448 A.2d 812 (1982); Luttinger v. Rosen, 164 Conn. 45,
47–48, 316 A.2d 757 (1972).16 The mortgage contingency
clauses in those cases were conditions precedent only
to the buyer’s duty to purchase the property. See Loda v.
H. K. Sargeant & Associates, Inc., supra, 77–78 (clause
providing that sale of home would not occur unless
buyers obtained mortgage commitment no later than
specified date was condition precedent to contract;
clause was imposed ‘‘for the protection and benefit of
the [buyers],’’ such that buyers could waive the
clause);17 Luttinger v. Rosen, supra, 48 (clause allowing
buyers to terminate contract within specified time if
they could not obtain financing was condition prece-
dent to contract; buyers entitled to refund of their
deposit when they could not obtain financing);18 see
also Dodson v. Nink, 72 Ill. App. 3d 59, 65–66, 390 N.E.2d
546 (1979) (buyer’s ability to sell own home within
ninety days was condition precedent to buyer’s duty to
purchase home; contract unenforceable against buyer
when sale of her home fell through). In the context of
equitable conversion, the crux of our inquiry is whether
the seller’s duty to convey title was contingent, since
equitable conversion, at its core, depends on whether
title passed to the buyer at signing. We did not decide
in our previous cases whether the seller’s duty to convey
title was conditional.19
The present case more closely resembles Grant and
Parson, in which the Maryland and Texas courts
squarely addressed the effect of a mortgage contingency
clause on the application of equitable conversion. See
Grant v. Kahn, supra, 198 Md. App. 431–34; Parson v.
Wolfe, supra, 676 S.W.2d 692. As in those cases, the
mortgage contingency clause in this case benefited the
buyer, who could waive it at any time and specifically
enforce the contract against the seller. See Grant v.
Kahn, supra, 431–34; Parson v. Wolfe, supra, 692. The
facts of this case are similar to those in Parson, in
which the seller died prior to closing, and the court
held that the parties did not intend for the clause to
delay the seller’s duty to convey title. Parson v. Wolfe,
supra, 692. The mortgage contingency clause is also
similar to that in Grant, wherein the buyer could termi-
nate the contract if he could not obtain financing within
a specified period. See Grant v. Kahn, supra, 431–32.
Although the clause in the present case differs slightly
from that in Grant, those differences more strongly
evidence the parties’ intent for title to pass to Winn at
signing. The contingency period in Grant continued
indefinitely in the absence of action by the parties. Id.
In contrast, the contingency period in this case expired
within twenty-one days, after which the contract
‘‘remain[ed] in full force and effect.’’ Additionally, in
Grant, the seller could terminate the contract upon
notice to the buyer, which voided the contract in three
days unless the buyer removed the contingency. Grant
v. Kahn, supra, 432. In the present case, the decedent
never had any discretion not to proceed with the sale.20
The church points to another clause in the contract—
the decedent’s waiver of specific performance—in
arguing that equitable conversion should not apply in
this case.21 The church contends that equitable conver-
sion cannot apply unless the contract is specifically
enforceable against both parties. We disagree. As dis-
cussed previously, the key inquiry in an equitable con-
version analysis is whether the contract is specifically
enforceable against the seller. See Noor v. Centreville
Bank, supra, 193 Md. App. 167–68 (‘‘[T]here must, in
fact, be a clear duty on the part of the seller to convey the
property, a duty enforceable by an action for specific
performance. . . . If there is some condition or contin-
gency to the seller’s duty to convey . . . equitable con-
version would not take effect until [the] condition or
contingency is resolved . . . .’’ [Citation omitted;
emphasis added.]); see also Watson v. Watson, 304 Md.
48, 61, 497 A.2d 794 (1985) (‘‘an equitable conversion
will place equitable title in the purchaser only if the
contract is one under which the vendor would be sub-
ject to a decree for specific performance’’ [emphasis
added]); Butler v. Wilkinson, 740 P.2d 1244, 1255 (Utah
1987) (‘‘[t]he doctrine gives a vendee the right to obtain
a decree of specific performance from a court of equity’’
[emphasis added]).22 In the present case, Winn expressly
retained the ability to specifically enforce the contract
against the decedent.23 Indeed, the Texas Court of
Appeals rejected a nearly identical argument in Parson,
reasoning that because the seller agreed to accept liqui-
dated damages in lieu of specific performance or tradi-
tional damages in the event of the buyer’s default, the
seller had a remedy under the contract, and the contract
was therefore enforceable against both parties. Parson
v. Wolfe, supra, 676 S.W.2d 692. As we concluded pre-
viously in this opinion, Winn’s ability to secure a mort-
gage was not a condition precedent to the contract,
and the parties intended for the contract to be fully
enforceable against both parties at signing.24 The dece-
dent’s waiver of specific performance actually supports
this notion; if the contract was not immediately enforce-
able, there would be no need for a clause protecting
Winn from having to proceed with the sale in the event
she could not obtain financing.
Finally, looking more broadly to the parties’ intent,
the decedent’s goal to redirect his bequest from the
church to Cheekwood is evident.25 In deciding whether
to apply equitable conversion, we must give due consid-
eration to the ‘‘ ‘presumed intention of the owner’ ’’;
United States v. O’Dell, supra, 247 F.3d 684; and ‘‘the
result to be accomplished.’’ (Internal quotation marks
omitted.) United States v. 74.05 Acres of Land, supra,
428 F. Supp. 2d 62. The decedent’s letter to the president
of Cheekwood stated: ‘‘I hereby wish to memorialize
and confirm my pledge to donate the proceeds from
the sale of my . . . house . . . to . . . Cheekwood
. . . . [I]f I have not given such proceeds to Cheekwood
during my lifetime, my estate shall be obligated to give
such proceeds to Cheekwood. . . . I understand that
Cheekwood is relying on this pledge and, accordingly, I
intend this pledge to be enforceable against and binding
upon my estate, any provisions in my [w]ill to the con-
trary notwithstanding.’’ Betty Ann Hadley also attested
to the decedent’s intent to redirect his bequest from
the church to Cheekwood. Her affidavit states that the
decedent ‘‘declared that he was redirecting the gift in his
[w]ill from [the church] to Cheekwood.’’ The affidavit
continues to state the following: ‘‘He discussed this
bequest many times over the weeks prior to signing it
and he had several conversations with his attorney . . .
about this change in his original will. It was his clear
intention that the proceeds from the . . . home be
given to Cheekwood as he had already been very gener-
ous to the [church] and he stated in my presence that
he intended to give this gift to [Cheekwood] instead of
the [church].’’26 Because the core of the doctrine of
equitable conversion is the parties’ intent, these state-
ments further support the application of equitable con-
version to this case. See Connelly v. Federal National
Mortgage Assn., supra, 251 F. Supp. 2d 1074 n.3.
Overall, courts have ‘‘wide discretion and broad equi-
table power’’ to effectuate the intent of the parties via
equitable conversion. (Internal quotation marks omit-
ted.) Greco v. Greco, 275 Conn. 348, 362, 880 A.2d 872
(2005); see Parson v. Wolfe, supra, 676 S.W.2d 691 (‘‘the
doctrine is used to carry out the intent of the testator
who directs that certain realty be sold or purchased’’).
‘‘[E]quitable remedies are not bound by a formula but
are molded to the needs of justice.’’ (Internal quotation
marks omitted.) Stratford v. Wilson, 151 Conn. App.
39, 47, 94 A.3d 644, cert. denied, 314 Conn. 911, 100
A.3d 403 (2014). ‘‘Flexibility rather than rigidity has
distinguished [them].’’ (Internal quotation marks omit-
ted.) Weinberger v. Romero-Barcelo, 456 U.S. 305, 312,
102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982). We must ‘‘be
ever diligent to grant relief against inequitable conduct.’’
(Internal quotation marks omitted.) New Hartford v.
Connecticut Resources Recovery Authority, 291 Conn.
433, 459, 970 A.2d 592 (2009); see also Holland v. Flor-
ida, 560 U.S. 631, 649–50, 130 S. Ct. 2549, 177 L. Ed. 2d
130 (2010).
The decedent in the present case ‘‘took every step
necessary’’ on his part to effect a sale of the property
to Winn. Kelley v. Neilson, 433 Mass. 706, 714–15, 745
N.E.2d 952 (2001). Moreover, his intent to sell the prop-
erty and benefit Cheekwood is evident from the record,
despite the fact that he died before the mortgage contin-
gency period in the contract had expired or been waived
by Winn.27 Equitable conversion nonetheless occurred,
and this fact should not prevent the sale from closing
as the parties intended.
The judgment of the Appellate Court is reversed only
with respect to AC 35289 and the case is remanded to
the Appellate Court with direction to affirm the judg-
ment of the trial court granting the coexecutors’ applica-
tion for authorization to sell the property.
In this opinion the other justices concurred.
1
To avoid confusion between the defendants, we refer to Betty Ann Hadley
and Lee Snow collectively as coexecutors. For the sake of simplicity, we
refer to all the defendants individually by name.
2
We granted Cheekwood’s petition for certification to appeal limited to
the following issue: ‘‘Did the Appellate Court properly reverse the trial
court’s judgment that the subject real property did not automatically pass
to the specific devisee of the property under a will upon the death of the
decedent when, prior to the decedent’s death, he had entered into a contract
to sell the property to a third party?’’ Southport Congregational Church–
United Church of Christ v. Hadley, 314 Conn. 933, 102 A.3d 84 (2014).
3
Shortly before the publication of this opinion, the church moved to
dismiss the appeal as moot, claiming that Winn was no longer willing to
purchase the property in accordance with the terms of the contract.
According to the church, the parties had reached a settlement by which
Winn would purchase the property at a lower price, and the church, Cheek-
wood, and the decedent’s estate would all share in the proceeds. Cheekwood
opposed the motion, however, arguing that the appeal was not moot because
the settlement had not yet been consummated, and Winn had agreed to
proceed with the sale in accordance with the contract, albeit at a lower
price. We agreed with Cheekwood and denied the church’s motion. See
Heyse v. Case, 114 Conn. App. 640, 644, 971 A.2d 699 (‘‘[t]here is no such
thing as anticipatory mootness’’), cert. denied, 293 Conn. 905, 976 A.2d
705 (2009).
4
We note that the sales contract in the present case refers to the decedent
as the seller and to Winn as the buyer. For the sake of simplicity, quotations
within this opinion to the various provisions of this contract retain these des-
ignations.
5
The contract states: ‘‘[If] BUYER is unable or unwilling to perform . . .
SELLER’s sole and exclusive remedy shall be the right to terminate this
[a]greement by written notice to BUYER . . . and retain the down payment
as reasonable liquidated damages . . . .’’
6
The plaintiff disputes Cheekwoods entitlement to the proceeds of the
sale. This issue is not, however, part of the certified question. See Southport
Congregational Church–United Church of Christ v. Hadley, 314 Conn. 933,
102 A.3d 84 (2014). Accordingly, we decline to address it.
7
The decedent was a resident of the state of New York at the time of
his death.
8
General Statutes § 45a-325 provides: ‘‘The court . . . may . . . autho-
rize the fiduciary of the estate to convey the title of the deceased in any
real property to any person entitled to it by virtue of any contract of the
deceased person . . . .’’
9
The coexecutors agreed to hold the proceeds in escrow pending resolu-
tion of any competing claims. See footnote 6 of this opinion.
10
General Statutes § 45a-428 (b) provides in relevant part: ‘‘[R]eal property
of a decedent whose estate is solvent and . . . specifically devised by will
. . . shall not be so ordered to be sold or mortgaged without the written
consent of the specific devisees . . . .’’
11
We note that neither the certified question; see footnote 2 of this opinion;
nor the briefing of the parties in the present case, relate to the Appellate
Court’s conclusion that the coexecutors’ counterclaim was moot. See South-
port Congregational Church–United Church of Christ v. Hadley, supra, 152
Conn. App. 300.
12
We recognize that the modern trend in contract law is to abandon the
distinction between conditions precedent and conditions subsequent. See,
e.g., Gingras v. Avery, 90 Conn. App. 585, 591 n.4, 878 A.2d 404 (2005).
Nevertheless, our state’s case law has previously recognized a difference
between conditions precedent and conditions subsequent. See Seymour
Trust Co. v. Sullivan, 152 Conn. 282, 286, 206 A.2d 420 (1964) (parties
‘‘forfeit[ed] their rights . . . by operation of a condition subsequent
expressly provided for in the contract’’); Dolak v. Sullivan, 145 Conn. 497,
503, 144 A.2d 312 (1958) (‘‘obligations under [contract] were subject to
extinguishment, in whole or in part, upon the happening of a condition
subsequent’’); Westmoreland v. General Accident Fire & Life Assurance
Corp., 144 Conn. 265, 272, 129 A.2d 623 (1957) (The contract ‘‘does not
contemplate that [a condition] is a condition precedent to cancellation. If
such adjustment is not a condition precedent, it certainly is not a condition
subsequent . . . .’’); Detels v. Detels, 79 Conn. App. 467, 473, 830 A.2d 381
(2003) (‘‘the parties may have created a condition subsequent that would
operate to discharge the plaintiff from his obligation’’).
13
The exact language of the contract at issue in Francini is unclear. See
Francini v. Farmington, supra, 557 F. Supp. 152. The court merely states:
‘‘Completion of the contract was conditioned on approval by [a municipal
planning and zoning commission] of [the buyer’s] application to subdivide
the land into four lots.’’ Id.
14
The clause stated that the contingency would continue indefinitely until
the buyer notified the seller of its removal. Grant v. Kahn, supra, 198 Md.
App. 431–32. If the buyer did not do so within forty-five days, the seller
could terminate the contract by notice to the buyer, which would void the
contract in three days unless the buyer addressed the contingency. Id.
The buyer never removed the contingency and the seller never sought to
terminate the contract. Id. The issue of ownership during the executory
period arose when, several days before closing, a judgment entered against
the property. Id., 432.
15
The clause at issue in Parson stated: ‘‘Purchaser will obtain a loan upon
the security of the real property above described to provide a part of the
consideration hereinabove provided for, the reasonable time hereinafter
accorded purchaser for performance of the obligation required of him by this
contract shall include a reasonable time for processing and consummation of
such loan.’’ (Internal quotation marks omitted.) Parson v. Wolfe, supra, 676
S.W.2d 692.
16
See also Faloutico v. Maher, 182 Conn. 448, 449, 438 A.2d 710 (1980)
(per curiam); Lach v. Cahill, supra, 138 Conn. 421; Barber v. Jacobs, 58
Conn. App. 330, 335, 753 A.2d 430, cert. denied, 254 Conn. 920, 759 A.2d
1023 (2000).
17
‘‘The agreement was made contingent upon the buyers’ obtaining a
conventional mortgage of $59,000 for a term of twenty-five years at a rate
not to exceed 11 percent. It also contained a clause which stated that the
‘[s]ale [is] contingent upon [b]uyer obtaining [a] mortgage commitment no
later than March 12, 1979.’ ’’ Loda v. H. K. Sargeant & Associates, Inc.,
supra, 188 Conn. 71. ‘‘Another clause, appearing directly below this clause,
provided: ‘If [b]uyer is unable to obtain such financing, he may, by written
notice to the [s]eller, declare this agreement null and void and any payments
made hereunder shall be returned to [b]uyer. Buyer agrees to apply for such
financing immediately, and to pursue such application with diligence.’ ’’ Id.,
77–78 n.9.
18
This court described the clause by stating: ‘‘The contract was ‘subject
to and conditional upon the buyers obtaining first mortgage financing on
said premises from a bank or other lending institution in an amount of
$45,000 for a term of not less than twenty . . . years and at an interest rate
which does not exceed [8.5 percent] per annum.’ . . . The parties further
agreed that if the plaintiffs were unsuccessful in obtaining financing as
provided in the contract, and notified the seller within a specific time, all
sums paid on the contract would be refunded and the contract terminated
without further obligation of either party.’’ Luttinger v. Rosen, supra, 164
Conn. 46.
19
This may have been the case in Loda, however. The clause in Loda stated
that the sale would not go through unless the buyer secured a mortgage
commitment by a particular date. Loda v. H. K. Sargeant & Associates,
Inc., supra, 188 Conn. 71. Thus, the seller’s duty to convey title may have been
conditional. Nonetheless, Loda does not control the present case because the
present clause is distinguishable; the contract in this case remained in full
force and effect unless the buyer terminated the contract within twenty-
one days.
20
Francini and Rockland-Rockport Lime Co. are also instructive, but
distinguishable from the present case. In those cases, the parties did not
intend for the sale to proceed until a condition occurred. See Francini v.
Farmington, supra, 557 F. Supp. 155 (approval of buyer’s application to
subdivide lot); Rockland-Rockport Lime Co. v. Leary, supra, 203 N.Y. 480
(lessee’s exercise of option to purchase property). Here, the decedent’s duty
to convey title was not conditioned on Winn’s ability to obtain a mortgage.
21
The church also argues that a provision in the contract placing the risk
of loss on the decedent until closing demonstrates that the parties did not
intend for title to pass to Winn at signing. The church raised this argument
for the first time in its brief to this court. ‘‘It is well settled that [o]ur case
law and rules of practice generally limit [an appellate] court’s review to
issues that are distinctly raised at trial.’’ (Internal quotation marks omitted.)
Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312
Conn. 714, 761, 95 A.3d 1031 (2014). Furthermore, ‘‘as a general rule, a party
may not raise a claim in a certified appeal to this court that it failed to raise
in the Appellate Court.’’ Mueller v. Tepler, 312 Conn. 631, 643, 95 A.3d 1011
(2014). We therefore decline to address the church’s contention with respect
to the risk of loss provision.
22
The cases cited by the church in support of this argument did not involve
contingencies and refer more generally to the maxim that the contract must
be enforceable for equitable conversion to apply. See Zaring v. Lavatta, 36
Idaho 459, 211 P. 557 (1922) (contract unenforceable against seller when
buyer’s obligations under contract were ‘‘altogether indefinite and uncer-
tain’’); Clark v. Potts, 255 Ill. 183, 189, 99 N.E. 364 (1912) (‘‘[t]he minds of
the parties never met . . . [the seller] would have had a complete defense
[to the enforceability of the contract], on the ground that the contract had
never been accepted by him . . . [u]nless a contract can be specifically
enforced as to all parties, equity will not interfere’’ [internal quotation marks
omitted]); Panushka v. Panushka, 221 Or. 145, 149, 152, 349 P.2d 450 (1960)
(‘‘a test as to the existence of a conversion under an executory contract is
the mutuality of the agreement, the purchaser agreeing to buy and the seller
agreeing to sell, thereby vesting either party to such a contract with the
right to specific performance’’ and ‘‘[a]n equitable conversion . . . takes
place when a contract for the sale of real property becomes binding upon
the parties’’); Tulin v. Johnston, 152 Va. 587, 593, 147 S.E. 206 (1929) (infant
could not specifically enforce contract when contract could not be specifi-
cally enforced against him).
23
The contract states: ‘‘If SELLER defaults . . . BUYER shall have such
remedies as BUYER shall be entitled to at law or in equity, including, but
not limited to, specific performance.’’
24
Winn assumed various obligations under the contract, such as the duty
to ‘‘make prompt application for [a mortgage] and to pursue said application
with diligence.’’
25
Some jurisdictions have held that specific devises are adeemed pursuant
to the doctrine of equitable conversion when the testator enters into a
contract to sell the property to a third party during his or her lifetime. See,
e.g., In re Dwyer’s Estate, 159 Cal. 664, 675–76, 115 P. 235 (1911); In re
Estate of Krotzsch, 60 Ill. 2d 342, 348–49, 326 N.E.2d 758 (1975); Kelley v.
Neilson, 433 Mass. 706, 714–15, 745 N.E.2d 952 (2001); Newport Water Works
v. Sisson, 18 R.I. 411, 411–12, 28 A. 336 (1893).
26
The seller specifically devised $150,000 to Reverend Paul Whitmore and
Laura Whitmore. Reverend Whitmore is the pastor of Southport Congrega-
tional Church–United Church of Christ.
27
Cheekwood argues that Winn waived the mortgage contingency clause
before the decedent’s death. However, because we hold that the clause did
not prevent the application of equitable conversion regardless of whether
Winn waived it, we need not address this contention.