Saunders v. KDFBS, LLC ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ROGER SAUNDERS, TRUSTEE
v. KDFBS, LLC, ET AL.
(AC 40918)
Moll, Alexander, and Suarez, Js.
Syllabus
The plaintiff, as trustee, sought to foreclose a mortgage on certain real
property owned by the defendant L Co. In the first count of his complaint,
the plaintiff sought foreclosure of the mortgage, alleging, inter alia, that
there were encumbrances on the subject property that were subsequent
and subordinate to his mortgage, including the mortgage of the defen-
dants K and D. In the second count, the plaintiff sought a declaratory
judgment that the mortgage of K and D, which was purportedly recorded
before the plaintiff’s mortgage, was subordinate to the plaintiff’s mort-
gage on the ground that the plaintiff had no notice of K and D’s mortgage
because it had been incorrectly indexed by the town clerk’s office. K
and D denied the allegation in each count that their mortgage was
subordinate to the plaintiff’s mortgage and asserted a special defense
that L Co. had mortgaged the subject property to them and that their
mortgage was prior in right and title to the plaintiff’s mortgage. Due to
a mistake on the mortgage, the town clerk’s office initially indexed the
deed under S, the sole member of L Co., as an individual, rather than
as a representative of L Co. The trial court rendered judgment for the
plaintiff on both counts and ordered a foreclosure by sale. Prior to the
sale date set by the court, K and D appealed from the judgment of
foreclosure to this court, which dismissed the appeal for lack of a final
judgment. K and D, on the granting of certification, appealed to our
Supreme Court, which reversed this court’s order and remanded this
case to this court for further proceedings. Held that the trial court’s
finding that the plaintiff’s mortgage had priority over K and D’s mortgage
was not clearly erroneous; K and D’s mortgage did not put the plaintiff
on actual or constructive notice when it was lodged with the town clerk,
as, due to an error in the language of the mortgage, the chain of title
for L Co. was silent as to the existence of K and D’s mortgage, which
was indexed with S as the grantor according to accepted practice, and
there were no documents, information or other matters that appeared
in the chain of title of L Co. to put the plaintiff’s title searcher on any
notice as to K and D’s mortgage.
Argued January 12—officially released July 20, 2021
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district of
Danbury and tried to the court, Hon. William J. Lavery,
judge trial referee; judgment of foreclosure by sale and
determination of the parties’ mortgages as to the subject
property; thereafter, the defendant Karen Davis et al.
appealed to this court, which granted the plaintiff’s
motion to dismiss the appeal, and the defendant Karen
Davis et al., on the granting of certification, appealed
to the Supreme Court, which reversed this court’s order
dismissing the appeal and remanded the case to this
court for further proceedings. Affirmed.
Alexander Copp, with whom were Neil R. Marcus,
and, on the brief, Barbara M. Schellenberg, for the
appellants (defendant Karen Davis et al.).
Ryan S. Tougias, with whom were Michael J. Jones
and John J. Ribas, and, on the brief, Jessica M. Signor,
for the appellee (plaintiff).
Opinion
ALEXANDER, J. This appeal returns to us on remand
from our Supreme Court. Saunders v. KDFBS, LLC,
335 Conn. 586, 239 A.3d 1162 (2020). The defendants
Daniel Davis and Karen Davis1 appealed from the judg-
ment of foreclosure by sale rendered by the trial court
in favor of the plaintiff, Roger Saunders, Trustee of
Roger Saunders Money Purchase Plan. At trial, the
plaintiff sought a judgment of foreclosure by sale and
a declaratory judgment that the plaintiff’s mortgage had
priority over the defendants’ mortgage. The defendants
argued on appeal that the trial court erred in its determi-
nation that the mortgage held by the plaintiff (Saunders
mortgage) on the underlying real property had priority
over the mortgage held by the defendants (Davis mort-
gage) on the same property. This court summarily dis-
missed the appeal for lack of a final judgment. Our
Supreme Court granted certification and reversed the
decision of this court and remanded the appeal to this
court for further proceedings. Id., 606.
On appeal, the defendants argue that the Davis mort-
gage has priority over the Saunders mortgage because
the Davis mortgage was a valid mortgage that had been
lodged with the town clerk’s office first. The Davis
mortgage initially was recorded outside the chain of
title for the defendant KDFBS, LLC (KDFBS), due to a
drafting error contained in the grantor clause of the
mortgage. The town clerk’s office recorded the Davis
mortgage within the chain of title for KDFBS after a
correction report was issued in 2009, but this occurred
after the Saunders mortgage had been properly
recorded. The defendants claim that, notwithstanding
the fact that the Davis mortgage was submitted to the
town clerk’s office with a drafting error, the plaintiff
nonetheless had constructive notice of the Davis mort-
gage when it initially was lodged with the town clerk
in 2008. We disagree and, accordingly, affirm the judg-
ment of the trial court.
In its decision, our Supreme Court set forth the fol-
lowing relevant facts and procedural history. ‘‘In March,
2008, [KDFBS] purchased the subject property, a condo-
minium in Ridgefield, by way of a deed that was
recorded under its name in April, 2008. KDFBS is man-
aged by its sole member, the defendant Brian Scanlon.
‘‘In June, 2008, KDFBS executed a mortgage deed on
the property in favor of [the defendants] in the principal
amount of $565,000. Although the signature line and
the acknowledgement clause of the deed reflected that
Scanlon was executing the deed in his capacity as a
member of KDFBS, his designation as a member was
erroneously omitted in the grantor clause at the top of
the mortgage deed. The Ridgefield town clerk’s office
indexed the deed under Scanlon’s personal name as the
grantor.
‘‘In October, 2009, KDFBS executed a second mort-
gage deed on the Ridgefield property in favor of the
plaintiff as security for a joint loan in the amount of
$110,000 to KDFBS and to Scanlon individually. Scanlon
told the plaintiff that he would have a first mortgage
on the property. To ensure his security for the loan,
the plaintiff had a title search conducted. That search
revealed no mortgages of record in KDFBS’ chain of
title. The [Saunders] mortgage deed was duly recorded
in October, 2009.
‘‘In December, 2009, the Ridgefield town clerk’s office
changed the official index for the Davis mortgage after
an unidentified person brought the indexing error to
the town clerk’s attention. A correction report was
issued, and the Davis mortgage was changed from the
grantor index for Scanlon to the index for KDFBS.
‘‘KDFBS and Scanlon subsequently defaulted on their
obligation to the plaintiff . . . . In the first count of
the complaint, the plaintiff sought foreclosure of [the
Saunders] mortgage. In addition to asserting allegations
regarding the default, this count alleged that there were
encumbrances on the subject property that were subse-
quent and subordinate to the [Saunders] mortgage,
among which was the purported Davis mortgage, which
was recorded in 2008. In the second count, the plaintiff
sought a declaratory judgment that the 2008 Davis mort-
gage was subordinate to the . . . 2009 [Saunders]
mortgage because the plaintiff had no notice of it due
to it having been indexed under Scanlon’s name.
‘‘[The defendants] filed an answer denying the allega-
tion in each count that [the Davis] mortgage was subor-
dinate to the [Saunders] mortgage. They also asserted
a special defense that KDFBS, acting through its duly
authorized member, Scanlon, had mortgaged the sub-
ject property to them and that this mortgage was prior
in right and title to the [Saunders] mortgage.
‘‘KDFBS was defaulted for failure to appear and Scan-
lon was defaulted for failure to plead. The plaintiff then
filed a motion for a judgment of foreclosure by sale. The
motion was supported by an affidavit of debt totaling
$176,467.50, an affidavit of attorney’s fees in the amount
of $18,345, and an appraisal assessing the property’s
fair market value at $310,000.
‘‘Following a contested trial between the plaintiff and
[the defendants], the court rendered judgment in favor
of the plaintiff on both counts and ordered a foreclosure
by sale.’’ (Footnotes omitted.) Id., 588–90. This appeal
followed. Additional facts will be set forth as necessary.
The defendants seek reversal of the trial court’s
declaratory judgment in which it found that the Saun-
ders mortgage had priority over the Davis mortgage.
The defendants argue that the language of the mortgage
deed, as recorded in 2008, put the plaintiff on construc-
that he cannot be charged with constructive notice of
the Davis mortgage because it was recorded outside
the chain of title for KDFBS.
We begin our analysis by setting forth our standard
of review. ‘‘Our standard of review is plenary when we
are required to determine the intent behind language
in a deed or other written instrument by which litigants
claim an interest in real estate. Under that plenary stan-
dard, we are not required to give customary deference
to the trial court’s factual inferences.’’ Ginsberg & Gin-
sberg, LLC v. Alexandria Estates, LLC, 136 Conn. App.
511, 515, 48 A.3d 101 (2012). ‘‘To the extent that the
court has made findings of fact, our review is limited
to a determination of whether the court’s conclusions
were clearly erroneous.’’ Torgerson v. Sarah Tuxis Res-
idential Services, Inc., 81 Conn. App. 435, 439, 840 A.2d
66, cert. denied, 269 Conn. 903, 852 A.2d 737 (2004).
Further, ‘‘[t]o the extent that our review requires us
to construe statutory provisions, this presents a legal
question over which our review also is plenary.’’ Wash-
ington Mutual Bank v. Coughlin, 168 Conn. App. 278,
288, 145 A.3d 408, cert. denied, 323 Conn. 939, 151 A.3d
387 (2016).
In the present matter, the court determined in the
judgment of foreclosure that the Saunders mortgage,
which was recorded in October, 2009, had priority over
the Davis mortgage. The court found that the Davis
mortgage had not been recorded in the chain of title
for KDFBS until December, 2009. ‘‘The law relating to
the priority of interests has its roots in early Connecticut
jurisprudence. A fundamental principle is that a mort-
gage that is recorded first is entitled to priority over
subsequently recorded mortgages provided that every
grantee has a reasonable time to get his deed recorded.’’
(Internal quotation marks omitted.) Equicredit Corp.
of Connecticut v. Kasper, 122 Conn. App. 94, 97, 996
A.2d 1243, cert. denied, 298 Conn. 916, 4 A.3d 831 (2010).
In addition, General Statutes § 47-10 (a) provides in
relevant part: ‘‘No conveyance shall be effectual to hold
any land against any other person but the grantor and
his heirs, unless recorded on the records of the town
in which the land lies. . . .’’ (Emphasis added.)
The defendants do not argue on appeal that the plain-
tiff had actual notice of the Davis mortgage. The plaintiff
testified that he was told by Scanlon that he would have
the first mortgage on the property and that he would not
have engaged in business with Scanlon had he known
of the other mortgage on the property.
The defendants argue that, when the plaintiff
recorded his mortgage in 2009, he had constructive
notice of the Davis mortgage, which had been lodged
with the Ridgefield town clerk in 2008. The defendants
assert that the two elements for constructive notice in
a land record, namely, (1) a valid mortgage2 under either
our common law or the safe harbor provision of General
Statues § 49-31b (a),3 which was (2) ‘‘lodged for [the]
record’’ with the town clerk, were satisfied in this case.
Butchers’ Ice & Supply Co. v. Bascom, 109 Conn. 433,
441, 146 A. 843 (1929); see also Connecticut National
Bank v. Lorenzato, 221 Conn. 77, 82, 602 A.2d 959(1992). After a thorough review of the record, we con-
clude that the Davis mortgage did not put the plaintiff
on constructive notice when it was lodged with the
town clerk in 2008.
The defendants claim that, notwithstanding the draft-
ing error naming Brian Scanlon as the grantor in the
grantor clause, the language of the mortgage deed as
a whole put the plaintiff on constructive notice that
KDFBS was the intended grantor of the mortgage. The
defendants assert that ‘‘any possible ambiguity created
by the granting clause is resolved when the Davis mort-
gage is reviewed in its entirety’’ and that, therefore, the
plaintiff was put on constructive notice of the Davis
mortgage when that mortgage was first lodged with the
Ridgefield town clerk in 2008.
The defendants rely on two separate lines of authority
in support of their constructive notice claim. The first
line of authority stands for the proposition that
‘‘recordation of a valid mortgage gives constructive
notice to third persons if the record sufficiently dis-
closes the real nature of the transaction so that the
third party claimant, exercising common prudence and
ordinary diligence, can ascertain the extent of the
encumbrance.’’ Connecticut National Bank v.
Lorenzato, supra, 221 Conn. 81; see id., 82 (citing
cases).
The defendants argue that Lorenzato controls the
present case. We disagree. In Lorenzato, the mortgage
at issue was recorded in the land records with a signa-
ture page that did not have the required signatures and
acknowledgment. Id., 79. Our Supreme Court held that
the recordation was effective, so as to supply construc-
tive notice upon subsequent encumbrancers, because
‘‘an express reference to the omitted documentation in
the recorded mortgage deed would have enabled a title
searcher to make a requisite inquiry to discover the
terms of the mortgage.’’ Id., 83. In its analysis, the court
made the distinction between ‘‘a mortgage deed that is
imperfectly executed and one that is imperfectly
recorded. The former is a nullity and is, therefore, inca-
pable of giving constructive notice; the latter affords
constructive notice to subsequent third party creditors
to the extent that the mortgage, as recorded, contains
sufficient information to put a title searcher on
inquiry. From the point of view of the third party who
relies on that which the recorded conveyance purports
to encumber, it is immaterial whether an imperfect
recordation is attributable to the inadvertence of the
recording clerk or to the inadvertence of the mortgagee.
We have, in effect, so held in Connecticut National
Bank v. Esposito, 210 Conn. 221, 230–31, 554 A.2d 735(1989), in which the issue was whether a recorded mort-
gage deed gave constructive notice to [third-party] cred-
itors, even though the mortgagee in recording its deed
had inadvertently omitted documentation containing
important information about the amount of the mort-
gage obligation. We concluded that the recordation was
effective because an express reference to the omitted
documentation in the recorded mortgage deed would
have enabled a title searcher to make the requisite
inquiry to discover the terms of the mortgage.’’ (Empha-
sis added.) Connecticut National Bank v. Lorenzato,
supra, 221 Conn. 82–83.
The defendants argue that Lorenzato, and similar
cases, instruct that our analysis should focus ‘‘exclu-
sively on the face of the subject deed at the time it is
lodged with the recording clerk, even if a subsequent
recording error caused the mortgage to be undetectable
by third-party creditors.’’ We disagree. Central to the
holding in Lorenzato was the fact that other documents
recorded within the chain of title would have put a
title searcher on inquiry about the status of the mort-
gage. Our Supreme Court stated that it was ‘‘persuaded
that the mortgagee’s inadvertent mistake in recordation
gave constructive notice to the lien creditor because
the properly executed rider was sufficient to put a title
searcher on inquiry about the status of the mortgage.’’
(Emphasis added.) Connecticut National Bank v.
Lorenzato, supra, 221 Conn. 83; see also Connecticut
National Bank v. Esposito, supra, 210 Conn. 230.
In Lorenzato, the court also reasoned that ‘‘[m]any
errors in recording . . . are so neutralized by other
matters which do appear in the record, that no searcher
after the title possibly could be misled. Obviously, such
shortcomings should not affect the validity of the record
as notification. Among them are . . . an error or omis-
sion cured by the appearance of the information at
some other point in the record. . . . In the cases in
which the defective recordation of a valid deed was
held not to give constructive notice, in contradistinction
to the circumstances here, there appears to have been
nothing on the face of the recorded deed to put a title
searcher on inquiry about the error or omission.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Connecticut National Bank v.
Lorenzato, supra, 221 Conn. 83–84.
The second line of authority on which the defendants
rely consists of cases, dating back to 1795, standing for
the proposition that a valid mortgage, once lodged with
the town clerk, provides constructive notice even if the
town clerk makes a mistake in the recording of the
mortgage or fails to record the mortgage. See id., 82(‘‘[w]e have held that the imperfect recordation of a
valid mortgage gives constructive notice to third per-
sons, despite a clerk’s mistake in its actual recordation,
at least if the mistake is so obvious as to have put a
[third-party] claimant ‘upon inquiry’ to ascertain what
the mortgage contains’’); Butchers’ Ice & Supply Co. v.
Bascom, supra, 109 Conn. 441 (‘‘if the question arose,
as to the respective priorities of a grantee of a deed
lodged for record but failing of record through no fault
of his, and of a subsequent purchaser without notice,
it seems clear to us that when an attaching creditor has
done all that the law requires of him to perfect his
attachment of real estate, he should not lose the benefit
of his attachment because of the failure of the town
clerk to record the certificate of attachment, and that
by the express terms of the statute his attachment if
completed as therein provided, is made when the certifi-
cate is lodged in the office of the town clerk’’); Lewis
v. Hinman, 56 Conn. 55, 67, 13 A. 143 (1888) (‘‘The
consequences of [a] mistake [by the town clerk] should
not be visited upon the mortgagee. He did all he could
do and all that the law required of him. He left his deed
for record, and the record, by the statute, is to be as
of that date. From that time, which necessarily ante-
dates the actual recording, his title is secure. He cannot
be prejudiced by any subsequent action without his
fault.’’); Booth v. Barnum, 9 Conn. 286, 289 (1832) (‘‘[I]t
is settled law, that when a deed is lodged for record
with the [town clerk], it is constructive notice to all the
world. This principle has been so long established, and
it is so essential to the preservation of all the benefits
of the registering act, that it can admit of no doubt.’’);
Judd v. Woodruff, 2 Root (Conn.) 298, 299 (Super. 1795)
(‘‘[t]he plaintiffs’ deed was delivered to the town clerk
and by him entered upon the 26th of June 1766, and it
was the duty of the town clerk to have recorded it at
length; and the plaintiffs are not to suffer for his neglect
[in not recording the deed at full length until 1794]’’).
The defendants argue that this line of cases controls
the resolution of the present case. They claim that their
mortgage provided constructive notice to the plaintiff
because it had been lodged in 2008 with the Ridgefield
town clerk. They assert that the Davis mortgage should
be given priority over the Saunders mortgage because
the Ridgefield town clerk ‘‘misindexed’’ their otherwise
valid mortgage by recording it based on Scanlon and
not KDFBS in the grantor clause. We are unpersuaded
by the defendants’ argument.
In the present case, there were no documents, infor-
mation or ‘‘other matters’’ that appeared in the chain
of title for KDFBS to put the plaintiff’s title searcher
on any notice as to the Davis mortgage. The plaintiff’s
title searcher, Albert Testani, testified extensively as
to the steps he had undertaken in performing a title
examination for obligations of KDFBS secured by the
underlying property. Testani testified that his search
did not reveal the existence of the Davis mortgage
because it had not been indexed under KDFBS. Testani
testified that, at the time he conducted his title search,
he did not know that Scanlon was a member of KDFBS,
and the documents that he found during the search did
not mention Scanlon or the Davis mortgage. He further
testified that when conducting a title search it is his
standard practice to search by name and not by property
address as that is too ‘‘unreliable’’ and ‘‘dangerous.’’
The trial court found Testani’s testimony to be credible
and concluded that ‘‘the title search was done and the
run of the title was done in a professional manner and
that the plaintiff had no actual or constructive notice
of the [Davis mortgage].’’ We conclude that the face of
the mortgage as recorded did not put the plaintiff on
constructive notice because the chain of title for KDFBS
was silent as to the existence of the Davis mortgage
and could provide no basis for inquiry to the plaintiff’s
title searcher.
Moreover, our review of the record shows that the
town clerk indexed the Davis mortgage in 2008, based
on the standard practice that a mortgage is indexed
according to the grantor clause of the mortgage deed.
Barbara Serfilippi, chief clerk for the town of Ridgefield,
testified that the Davis mortgage was properly indexed.
Further, Serfilippi brought a copy of a handbook that
the Connecticut Town Clerks Association has created
for use by town clerks’ offices as a guide and reference,
which was admitted into evidence. The handbook indi-
cates that, when a mortgage deed is involved, town
clerks should ‘‘not index the names of [comakers] or
guarantors on a note who do not appear in the granting
clause of the instrument. Index the name of the owner-
mortgagor as grantor and the lender-secured party-
mortgagee as grantee.’’ Serfilippi testified that the Davis
mortgage was indexed under Scanlon, and not KDFBS
because only Scanlon’s name appeared in the grantor
clause of the mortgage deed.4 Serfilippi testified that the
Saunders mortgage was indexed under KDFBS because
KDFBS was the entity listed in the grantor clause of
that deed in accordance with the handbook guidelines.
Additionally, on cross-examination, the following col-
loquy took place:
‘‘[The Defendants’ Counsel]: In 2008, was a mistake
made in indexing Scanlon versus [KDFBS]?
‘‘[Serfilippi]: I don’t know if it was a mistake, because
if we follow the guidelines in the handbook, it was not
a mistake, the way that we interpreted it did.
‘‘[The Defendants’ Counsel]: Yeah. . . . If . . . .
‘‘[Serfilippi]: That . . . was the granting clause.’’
Our review of the record supports the court’s finding
that the Ridgefield town clerk’s office indexed the Davis
mortgage according to accepted practice and that the
mortgage was not ‘‘misindexed.’’ The present case is
readily distinguishable from those cases relied on by
the defendants in which the town clerk’s office was the
the error was the language of the mortgage, specifically,
the omission of KDFBS in the grantor’s clause, that was
lodged with the town clerk’s office for recording. The
Ridgefield town clerk’s actions were not the source of
the error.
The Davis mortgage was not recorded within the
chain of title for KDFBS at the time the Saunders mort-
gage was recorded because of an error in the language
of the mortgage, and, therefore, the plaintiff was not
on constructive notice of the Davis mortgage. ‘‘The con-
cept of the chain of title is well explained and expressed
in the Connecticut Standards of Title: The chain of title
concept is a principle of case law, developed to protect
subsequent parties from being charged with construc-
tive notice of the existence and contents of those
recorded instruments which a title searcher would not
be expected to discover by the customary search of
land records.’’ (Internal quotation marks omitted.) Gin-
sberg & Ginsberg, LLC v. Alexandria Estates, LLC,
supra, 136 Conn. App. 516. It is well established that
‘‘one searching title to land is not bound to search the
records at large, but only is bound with such facts
as appear in the chain of title to the particular lot in
question.’’ (Internal quotation marks omitted.) Powers
v. Olson, 252 Conn. 98, 108, 742 A.2d 799 (2000). In the
present case, the plaintiff, through a professional title
searcher, conducted a thorough examination of the land
records and did not discover the Davis mortgage. ‘‘The
law implies notice on the ground that it is conclusively
presumed that a person will not purchase an interest
in a piece of land without examining the condition of
the record. Such an act would be required by common
prudence.’’ Hunt v. Mansfield, 31 Conn. 488, 490–91
(1863); see also Beach v. Osborne, 74 Conn. 405, 412,
50 A. 1019 (1902). The record supports the court’s deter-
mination that the plaintiff had neither actual nor con-
structive notice of the Davis mortgage.
‘‘It is the policy of our law to make every man’s title
to his real estate, as far as practicable, appear of record,
and the land records are constructive notice to all the
world of any instruments there recorded.’’ Butchers’
Ice & Supply Co. v. Bascom, supra, 109 Conn. 440. We
conclude that the trial court’s finding that the plaintiff
did not have actual or constructive notice of the Davis
mortgage on the property was not clearly erroneous
and, therefore, as a matter of law, the Saunders mort-
gage had priority over the Davis mortgage.
The judgment is affirmed.
In this opinion the other judges concurred.
1
KDFBS, LLC, Brian Scanlon, The United States of America, and The
Village at Ridgefield Condominium Association, Inc., were also named as
defendants in the plaintiff’s complaint but have not participated in the
present appeal. We refer to Daniel Davis and Karen Davis as the defendants.
2
Because the trial court made findings as to the priority of the Davis and
Saunders mortgages, and the plaintiff does not contest the validity of the
Davis mortgage on appeal, we limit our analysis to the issue of whether the
Davis mortgage provided constructive notice to the plaintiff when it was
lodged with the town clerk.
3
General Statutes § 49-31b (a) provides: ‘‘A mortgage deed given to secure
payment of a promissory note, which furnishes information from which
there can be determined the date, principal amount and maximum term of
the note, shall be deemed to give sufficient notice of the nature and amount
of the obligation to constitute a valid lien securing payment of all sums
owed under the terms of such note.’’ See also Dart & Bogue Co. v. Slosberg,
202 Conn. 566, 578, 522 A.2d 763 (1987) (concluding that ‘‘§ 49-31b (a) is
a ‘safe harbor’ provision that does not preempt [common-law] standards
governing the validity of mortgages against subsequent lien creditors’’).
4
At trial the following colloquies took place:
‘‘[The Plaintiff’s Counsel]: Were you able to determine why it is that the
Davis mortgage was recorded under the name Brian Scanlon?
‘‘[Serfilippi]: No, it’s just the way that it was indexed . . . .
‘‘[The Plaintiff’s Counsel]: Okay. And, that’s . . . .
‘‘[Serfilippi]: [T]here was no reason, that’s the way
that they did it.
‘‘[The Plaintiff’s Counsel]: That’s because of the grantor clause?
‘‘[Serfilippi]: Of the grantor clause.’’
***
‘‘[The Plaintiff’s Counsel]: As you sit here today, do you think that the
Davis mortgage was properly indexed, um, in 2008?
‘‘[Serfilippi]: Under Brian Scanlon?
‘‘[The Plaintiff’s Counsel]: Correct?
‘‘[Serfilippi]: Yes.’’