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Memo To: brown's law office, sophia brown

File:
Research ID: 40001932891d4b6
Jurisdiction: State
State/Forum: Connecticut, United States of America
Date: February 15, 2024

Instant Memo

Issue

What is the legal consequence for a buyer if a purchasing attorney only obtains one of the two
deeds associated with a property and a lien remains attached to the obtained deed?

Research Description

Attorney also only obtained one of the two deeds associated with the property. A lien was still
attached to the deed attorney obtained.

Executive Summary

A contract by the owner of land to give a deed of it, without granting the vendee specific or
implied authority to incumber the land before title passes, does not create an equitable estate in
the vendee that liens could attach before he acquired the title. The title is complete when the deed
is executed and delivered; recording affects rights only as regards others than the grantor or their
heirs. Delivery of a deed always depends on the grantor's intent, as manifested by their words
and actions, and is a question of fact. An unacknowledged deed, or any instrument intended as a
conveyance of land, may be recorded in the records of the town in which such land is situated;
and such record shall be notice to all the world of the equitable interest thus created. No lien may
be placed on real property, choate or inchoate, unless there is an amount certain named in the
lien certificate. The recordation of a valid mortgage gives constructive notice to third persons if
the record sufficiently discloses 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.

Conclusion

Alexi | Page 1
A contract by the owner of land to give a deed of it, without granting the vendee specific or
implied authority to incumber the land before title passes, does not create an equitable estate in
the vendee that liens could attach before he acquired the title. The title is complete when the deed
is executed and delivered; recording affects rights only as regards others than the grantor or their
heirs. Delivery of a deed always depends on the grantor's intent, as manifested by their words
and actions, and is a question of fact. An unacknowledged deed, or any instrument intended as a
conveyance of land, may be recorded in the records of the town in which such land is situated;
and such record shall be notice to all the world of the equitable interest thus created. No lien may
be placed on real property, choate or inchoate, unless there is an amount certain named in the
lien certificate. The recordation of a valid mortgage gives constructive notice to third persons if
the record sufficiently discloses 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.

A mere contract by the owner of land to give a deed of it, without granting the vendee specific or
implied authority to incumber the land before title passes, cannot be said to create such an
equitable estate in the vendee that liens could attach before he acquired the title. Even though the
deed was not recorded, the title was complete when the deed was executed and delivered;
recording affects rights only as regards others than the grantor or their heirs. A vendor who takes
a mortgage on the land sold to secure the purchase money waives his implied lien, in the absence
of an express agreement that it shall be retained. (Gruss v. Miskinis, 130 Conn. 367, 34 A.2d 600
(Conn. 1943))

An unacknowledged deed, and any instrument intended as a conveyance of land, but which by
reason of a formal defect shall operate only as a conveyance of an equitable interest in such land,
and any contract for the conveyance of land, or of any interest therein, and any instrument by
which an equitable interest in land is created, in which such land is particularly described, may
be recorded in the records of the town in which such land is situated; and such record shall be
notice to all the world of the equitable interest thus created. The attorney's lien recognized in this
state is nothing more than a retaining lien. It cannot be positively enforced. (Hagearty v. Burns, 4
Conn.Supp. 505 (Conn. Super. 1937))

Real estate shall be attached by the officer leaving in the office of the town clerk of the town in
which it is situated a certificate that he has made such attachment. The trial court may grant a
prejudgment remedy upon a finding that there is probable cause that a judgment in the amount of
the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment
remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in
the matter in favor of the plaintiff. No lien may be placed on real property, choate or inchoate,
unless there is an amount certain named in the lien certificate. (Kopylec v. Town of North
Branford., 130 Conn.App. 146, 23 A.3d 51 (Conn. App. 2011))

"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." The term
“conveyance” commonly refers to the transfer of title to land from one person, or class of
persons, to another by deed. This term may also include assignment, lease, mortgage or
encumbrance of land. A mortgage is considered a conveyance of land within the meaning of the
Connecticut recordation statute, § 47–10. The assignment of a mortgage is in effect a conveyance

Alexi | Page 2
of the land included in the mortgage. (Astoria Fed. Mortg. Corp. v. Genesis Ltd. P'ship, 143 A.3d
1121, 167 Conn.App. 183 (Conn. App. 2016))

The holder of an interest in real property typically must file a notice on the land records in order
to prevent his interest from being lost in the event that the property is transferred to a bona fide
purchaser for value. The recordation of a valid mortgage gives constructive notice to third
persons if the record sufficiently discloses 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. In certain circumstances, a title searcher has an obligation to examine judicial
records or municipal zoning records in order to determine whether a particular title is
marketable. (Kopylec v. Town of North Branford., 130 Conn.App. 146, 23 A.3d 51 (Conn. App.
2011))

In Lomartira v. Lomartira, 159 Conn. 558, 271 A.2d 91 (Conn. 1970), before the Connecticut
Supreme Court, it was stated that the court concluded that there was no intention on the
plaintiff's part to convey a present interest in the property to the defendant, and that there was no
legal delivery of the second deed. The photocopy of the second deed was deemed invalid and
conveyed no interest in the property to the defendant. The court ruled that the defendant had no
estate or interest in the property and that the plaintiff was entitled to have the title to the property
quieted and settled against the defendant. The court also noted that delivery of a deed always
depends on the grantor's intent, as manifested by their words and actions, and is a question of
fact.

In Straw Pond Assocs., LLC v. Fitzpatrick, Mariano & Santos, P.C., 145 A.3d 292, 167
Conn.App. 691 (Conn. App. 2016), before the Connecticut Court of Appeals, it was stated that
the defendant attorney was hired by the buyers to facilitate the purchase of a building lot and an
associated right-of-way over an adjacent lot retained by the seller. The attorney was aware of the
agreement regarding the right-of-way at the time of closing in June 2004, but the warranty deed
he obtained for the buyers did not mention the right-of-way. When the buyers inquired about the
right-of-way, the attorney assured them that there was nothing to worry about. However, the
seller's attorney later informed the defendant that the right-of-way was not included in the deed
and proposed steps to rectify the issue. The seller withdrew the offer to cure the defect due to the
lack of response from the defendant attorney. The defendant attorney then informed the buyers
that they did not have a right-of-way over the seller's land. The seller initiated an injunction
against the buyers, who then hired another attorney. The buyers sued the defendant attorney in
March 2009, alleging negligence for failing to include the right-of-way in the deed and engaging
in a continuous course of conduct to prolong the harm from his drafting error. The defendant
attorney claimed that the buyers' claims were barred by the statute of limitations and filed a
motion for summary judgment. The trial court granted the motion for summary judgment, and
the buyers appealed.

Law

In Gruss v. Miskinis, 130 Conn. 367, 34 A.2d 600 (Conn. 1943), before the Connecticut
Supreme Court, it was stated that a mere contract by the owner of land to give a deed of it,
without granting the vendee specific or implied authority to incumber the land before title passes,
cannot be said to create such an equitable estate in the vendee that liens could attach before he

Alexi | Page 3
acquired the title. If the contract had been that the proposed buyer should take immediate
possession of the property and proceed with the work of construction the liens would then have
attached to the extent of the buyer's interest. Even though the deed was not recorded, the title was
complete when the deed was executed and delivered; recording affects rights only as regards
others than the grantor or their heirs. The provision inserted in the statute in 1925 gave the
plaintiff's lien priority over the unrecorded mortgage. A vendor who takes a mortgage on the
land sold to secure the purchase money waives his implied lien, in the absence of an express
agreement that it shall be retained. In view of the decision reached as to the meaning of the
statute, § 5105, recording would be as definitely the test as regards a purchase-money mortgage
as any other:

In Bridgeport People's Savings Bank v. Palaia, 115 Conn. 357, 161 A. 526, we held
that a mere contract by the owner of land to give a deed of it, without granting the
vendee specific or implied authority to incumber the land before title passes, cannot be
said to create such an equitable estate in the vendee that liens could attach before he
acquired the title; but we said (115 Conn. at page 362, 161 A. at page 529) that if the
contract had been that the proposed buyer should take immediate possession of the
property and proceed with the work of construction the liens would then have attached
to the extent of the buyer's interest. In the instant case the buyer had a deed of the land;
he was in possession and control under the deed; and Mrs. Bajusz knew that he
intended to proceed at once with the work of construction. Furthermore, § 5105
provides for a claim ‘by virtue of an agreement with or by consent of the owner of the
land.’ Even though the deed was not recorded, Miskinis owned the land; his title was
complete when the deed was executed and delivered; 1 Swift, Digest, p. 124; Haskell
v. Bissell, 11 Conn. 174, 176; recording affects rights only as regards others than the
grantor

[34 A.2d 602]

or their heirs. General Statutes, § 5010. The provision inserted in the statute in 1925,
referred to above, gave the plaintiff's lien priority over the unrecorded mortgage.

The defendant Bajusz further claims that she has a vendor's lien, because her
mortgage is a purchase-money mortgage, and that this lien is prior to the mechanic's
lien because the latter lienor is not a purchaser for value. There is a sharp difference
between the priority which may be claimed for a purchase-money mortgage and a
vendor's lien. The lien does not depend upon the mortgage. A vendor who takes a
mortgage on the land sold to secure the purchase money waives his implied lien, in the
absence of an express agreement that it shall be retained. Avery v. Clark, 87 Cal. 619,
25 P. 919, 22 Am.St.Rep. 272; Escher v. Simmons, 54 Iowa 269, 6 N.W. 274; Robbins
v. Masteller, 147 Ind. 122, 46 N.E. 330; 66 C.J. 1269, § 1173; 27 R.C.L. 578; see also
Soule v. Hurlbut, 58 Conn. 511, 522, 20 A. 610. In view of the decision we have
reached as to the meaning of the statute, § 5105, supra, recording would be as
definitely the test as regards a purchase-money mortgage as any other.

In Hagearty v. Burns, 4 Conn.Supp. 505 (Conn. Super. 1937), before the Connecticut Superior
Court, it was stated that an unacknowledged deed, and any instrument intended as a conveyance

Alexi | Page 4
of land, but which by reason of a formal defect shall operate only as a conveyance of an
equitable interest in such land, and any contract for the conveyance of land, or of any interest
therein, and any instrument by which an equitable interest in land is created, in which such land
is particularly described, may be recorded in the records of the town in which such land is
situated; and such record shall be notice to all the world of the equitable interest thus created.
The attorney's lien recognized in this state is nothing more than a retaining lien. It cannot be
positively enforced. Mr. Ryan's lien cannot be more extensive than his client's and his client has
been satisfied. A mere possessive right is all that he had and until the legislature actually defines
an attorney's lien it cannot extend the meaning of the Rules at common law:

I would go far to sustain this lien and by referring to an apparent deficiency in the
application of the statute to the facts I do not mean to lean entirely on the defect.

The Statute reads:

However, we have a situation where a client has been paid by the owner of the
premises. His motives in doing so were probably not lofty and an injustice has been
done to a member of our bar. I do not understand that the attorney's lien recognized
in this state is anything more than a retaining lien. 2 R.C.L. Sec. 150. It cannot be
positively enforced, but hasn't the very essence of it been destroyed in the absence of
an assignment or other agreement, by the payment of the attorney's client? I think so.

Mr. Ryan's lien cannot be more extensive than his client's and his client has been
satisfied. A mere possessive right is all that he had and until the legislature actually
defines an attorney's lien I cannot extend the meaning of the Rules at common law.

Judgment may be entered for the plaintiff.

In Kopylec v. Town of North Branford., 130 Conn.App. 146, 23 A.3d 51 (Conn. App. 2011),
before the Connecticut Court of Appeals, it was stated that "real estate shall be attached by the
officer leaving in the office of the town clerk of the town in which it is situated a certificate that
he has made such attachment.... The certificate shall ... describe the land attached with
reasonable certainty and shall specify the parties to the suit, the authority issuing the writ, the
court to which the process is returnable and the amount of damages claimed ....” The trial court
may grant a prejudgment remedy upon a finding that there is probable cause that a judgment in
the amount of the prejudgment remedy sought, or in an amount greater than the amount of the
prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be
rendered in the matter in favor of the plaintiff. No lien may be placed on real property, choate or
inchoate, unless there is an amount certain named in the lien certificate:

General Statutes § 52–285 provides in relevant part: “Real estate shall be attached by
the officer leaving in the office of the town clerk of the town in which it is situated a
certificate that he has made such attachment.... The certificate shall ... describe the
land attached with reasonable certainty and shall specify the parties to the suit, the
authority issuing the writ, the court to which the process is returnable and the amount
of damages claimed ....” (Emphasis added.)

Alexi | Page 5
 “The trial court may grant a prejudgment remedy upon a finding that there is probable
cause that a judgment in the amount of the prejudgment remedy sought, or in an
amount greater than the amount of the prejudgment remedy sought, taking into
account any defenses, counterclaims or set-offs, will be rendered in the matter in favor
of the plaintiff....” (Emphasis added; internal quotation marks omitted.) Caciopoli v.
Howell, 124 Conn.App. 273, 277, 5 A.3d 509 (2010). I conclude that no lien may be
placed on real property, choate or inchoate, unless there is an amount certain named in
the lien certificate.

In Astoria Fed. Mortg. Corp. v. Genesis Ltd. P'ship, 143 A.3d 1121, 167 Conn.App. 183 (Conn.
App. 2016), before the Connecticut Court of Appeals, it was stated that "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." The term “conveyance” is not statutorily
defined, but commonly refers to the transfer of title to land from one person, or class of persons,
to another by deed. This term may also include assignment, lease, mortgage or encumbrance of
land. A mortgage is considered a conveyance of land within the meaning of the Connecticut
recordation statute, § 47–10. The assignment of a mortgage is in effect a conveyance of the land
included in the mortgage. However, no Connecticut appellate court has opined as to whether an
assignment of a mechanic's lien is a conveyance of land within the meaning of § 47–10:

Section 47–10 provides in relevant part that “[n]o conveyance shall be effectual to
hold any land against any other person but the grantor and his heirs, unless

[167 Conn.App. 197]

recorded on the records of the town in which the land lies....” Given that the term
“conveyance” is not statutorily defined, we may look to the commonly approved
meaning of the term. See O'Dell v. Kozee, 307 Conn. 231, 243–44, 53 A.3d 178
(2012). Our Supreme Court has observed that “[a] conveyance, [i]n its most common

[143 A.3d 1131]

usage [is a] transfer of title to land from one person, or class of persons, to another by
deed. [The ] [t ]erm may also include assignment, lease, mortgage or encumbrance of
land ....” (Emphasis added; internal quotation marks omitted.) Groton v. Mardie Lane
Homes, LLC, 286 Conn. 280, 288–89, 943 A.2d 449 (2008) ; see also Black's Law
Dictionary (9th Ed. 2009). Our Supreme Court and this court also have concluded that
a mortgage is considered a conveyance of land within the meaning of the Connecticut
recordation statute, § 47–10. See Farmers & Mechanics Savings Bank v. Garofalo, 219
Conn. 810, 816 n. 8, 595 A.2d 341 (1991) ; Second National Bank of New Haven v.
Dyer, 121 Conn. 263, 267, 184 A. 386 (1936) ; Family Financial Services, Inc. v.
Spencer, 41 Conn.App. 754, 761, 677 A.2d 479 (1996). Also, “[t]he assignment [of a
mortgage] is in effect a conveyance of the land included in the mortgage.” Second
National Bank of New Haven v. Dyer, supra, at 267, 184 A. 386. To date, however, no
Connecticut appellate court has opined as to whether an assignment of a mechanic's
lien is a conveyance of land within the meaning of § 47–10. This is the issue that
confronts us in the present appeal.

Alexi | Page 6
In Kopylec v. Town of North Branford., 130 Conn.App. 146, 23 A.3d 51 (Conn. App. 2011),
before the Connecticut Court of Appeals, it was stated that "it has always been the policy of our
law that the land records should be the authentic oracle of title on which a bona fide purchaser or
attaching creditor might safely rely." The holder of an interest in real property typically must file
a notice on the land records in order to prevent his interest from being lost in the event that the
property is transferred to a bona fide purchaser for value. The recordation of a valid mortgage
gives constructive notice to third persons if the record sufficiently discloses 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. The purpose of the notice requirement is to prevent
subsequent third parties from being defrauded or otherwise misled by inaccuracies and omissions
in the record that conceal the true nature of the secured obligation. Errors and omissions in the
recorded mortgage that would not mislead a title searcher as to the true nature of the secured
obligation do not affect the validity of the mortgage against third parties. The order sufficiently
discloses the nature of the encumbrance on the property so that a third party, exercising common
prudence and ordinary diligence, can readily ascertain the extent of that encumbrance. A title
searcher would therefore be required to search outside of the chain of title in order to ascertain
the status of any such action. It is customary in this state for a title searcher to examine records
outside of the chain of title. In certain circumstances, a title searcher has an obligation to
examine judicial records or municipal zoning records in order to determine whether a particular
title is marketable:

After examining the text of the order and the circumstances in which it emerged,
we conclude that the encumbrance described within its text is an inchoate 16 equitable
lien. The encumbrance

[23 A.3d 60]

fits our Supreme Court's longstanding description of an equitable lien: “An equitable
lien creates merely a charge upon the property and when the person entitled to it is not
in possession of that property, he has no right to obtain possession from another unless
by virtue of some authority to do so expressly granted to him; his remedy to enforce
the lien is by a proceeding in equity to bring about its sale and the application of the
proceeds to the satisfaction of the obligation secured, or, in some other manner, by
order of the court, to make the property available for the discharge of that debt.”
Hansel v. Hartford–Connecticut Trust Co., 133 Conn. 181, 194, 49 A.2d 666 (1946).
At the time that this appeal was filed, the town was not in possession of the property
and the order expressly provides that the town may [130 Conn.App. 160] only obtain
satisfaction of its obligation by way of a foreclosure action, an equitable proceeding.
See Rockville Bank v. Victory Outreach Ministries, Inc., 125 Conn.App. 1, 6, 6 A.3d
177 (2010) (foreclosure is equitable proceeding.) Moreover, the transcript of the
hearing on the town's third motion for contempt reveals that the court intended to
provide the town with “a method to remediate [the property] and force compliance
with the court's order that the remediation occur.” In doing so, the court was
exercising its equitable powers to enforce its prior contempt order. Cf. AvalonBay
Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 243–44, 796 A.2d
1164 (2002). Accordingly, we conclude that the challenged order is an equitable
remedy and that the lien described therein is an equitable lien.

Alexi | Page 7
 Having determined that the encumbrance presently at issue is an equitable lien, we
must now determine whether the recorded order provides adequate notice to third
parties of the existence of an encumbrance on the property. Our Supreme Court has
explained that “the purpose of the land records is to give constructive notice to the
world of instruments recorded therein....” PNC Bank, N.A. v. Kelepecz, 289 Conn.
692, 701, 960 A.2d 563 (2008). Moreover, we note that “[i]t has always been the
policy of our law that the land records should be the authentic oracle of title on which
a bona fide purchaser or attaching creditor might safely rely.” (Internal quotation
marks omitted.) Lucas v. Deutsche Bank National Trust Co., 103 Conn.App. 762, 768,
931 A.2d 378, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). Accordingly, the
holder of an interest in real property typically must file a notice on the land records in
order to prevent his interest from being lost in the event that the property is transferred
to a bona fide purchaser for value. Id., at 768–69, 931 A.2d 378.

[130 Conn.App. 161] The adequacy of the notice provided by a lien certificate varies
according to the type of lien that the certificate is intended to secure. See PNC Bank,
N.A. v. Kelepecz, supra, 289 Conn. at 701, 960 A.2d 563. The recordation of certain
types of liens is governed by statute, and, consequently, many lien certificates must
incorporate certain statutorily specified information. See, e.g., General Statutes § 49–
34 (mechanic's liens); General Statutes § 52–380a (judgment liens). The appellate
courts of this state have had occasion to examine statutory lien certificates in order to
ascertain whether they provide adequate notice to third parties. See, e.g.,

[23 A.3d 61]

PNC Bank, N.A. v. Kelepecz, supra, at 701–702, 960 A.2d 563. These cases are
inapposite, however, as we have concluded that the lien presently at issue is not a
statutory lien.

Although we can find no Connecticut case law directly on point, we find a review of
the law governing the recordation of mortgages to be instructive. “It is well established
that the recordation of a valid mortgage gives constructive notice to third persons if the
record sufficiently discloses 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....

“The purpose of the notice requirement is to prevent subsequent third parties from
being defrauded or otherwise misled by inaccuracies and omissions in the record that
conceal the true nature of the secured obligation.... Errors and omissions in the
recorded mortgage that would not mislead a title searcher as to the true nature of the
secured obligation do not affect the validity of the mortgage against third parties.”
(Citations omitted; internal quotation marks omitted.) Id.

The recorded order provides a great deal of information concerning the nature and
extent of the encumbrance presently at issue. The order explicitly provides [130
Conn.App. 162] that it is intended to serve as a lien in order to secure reimbursement
for the town's expenses in performing certain remediation, which the order describes
in detail. The order also specifies that it is to be enforced by way of a foreclosure

Alexi | Page 8
 action. Specifically, the order provides that it “may be foreclosed ... in the same
manner as is provided for the foreclosure of judgment liens [and that] [t]he amount
due and owing shall be established by way of affidavit, with appropriate attached
statement or receipts....”

Although the order does not specify whether the town has performed the remediation
or initiated a foreclosure action, we conclude that the order sufficiently discloses the
nature of the encumbrance on the property so that a third party, exercising common
prudence and ordinary diligence, can readily ascertain the extent of that encumbrance.
The order contemplates that the property will be the subject of further litigation,
namely, a foreclosure action. A title searcher would therefore be required to search
outside of the chain of title in order to ascertain the status of any such action. We note
that it is customary in this state for a title searcher to examine records outside of the
chain of title. See Connecticut Bar Association, Connecticut Standards of Title (1999),
standard 1.1 (purpose of title examination is to secure marketable title, even if
marketability cannot be determined from land records); standard 2.3 (title searcher
required to search outside chain of title to verify existence or absence of certain
liens).17 Thus, in certain circumstances, a title searcher has an obligation to examine
judicial records or municipal zoning records in order to determine whether a particular
title is marketable.

In Lomartira v. Lomartira, 159 Conn. 558, 271 A.2d 91 (Conn. 1970), before the Connecticut
Supreme Court, it was stated that the court examined a case where a deed executed by the
plaintiff was allegedly delivered to the defendant. The defendant obtained the second deed in an
undisclosed manner, and later had photocopies made. After the plaintiff's instructions, the
original second deed was returned to the plaintiff and was destroyed without being recorded. The
defendant later recorded a photocopy of the second deed on the land records. The defendant's
brother, who was informed about the deed, did not believe he had any right to the property and
conveyed his purported interest to his mother. The plaintiff, however, continued to act as the
owner of the property, collecting rents and paying taxes. The court concluded that there was no
intention on the plaintiff's part to convey a present interest in the property to the defendant, and
that there was no legal delivery of the second deed. The photocopy of the second deed was
deemed invalid and conveyed no interest in the property to the defendant. The court ruled that
the defendant had no estate or interest in the property and that the plaintiff was entitled to have
the title to the property quieted and settled against the defendant. The court also noted that
delivery of a deed always depends on the grantor's intent, as manifested by their words and
actions, and is a question of fact. The court found no error in its conclusions:

From these facts the court concluded that there was no intent on the part of the
plaintiff to convey to the defendant a present interest in the property; that there was no
legal delivery of the second deed, under which the defendant claims an interest in the
property; that the photocopy of the second deed is invalid and conveys no interest in
the property to the defendant; that the defendant has no estate or interest

Page 93

Alexi | Page 9
 The defendant claims that the plaintiff effectively conveyed her interest in the
property and that the court erred in concluding that the defendant had no interest
therein. 'The delivery of a deed with intent by the grantor to pass title is essential to a
valid conveyance. City National Bank v. Morrissey, 97 Conn. 480, 483, 117 A. 493;
Wiley v. London & Lancashire Fire Ins. Co., 89 Conn. 35, 39, 92 A. 678; Porter v.
Woodhouse, 59 Conn. 568, 575, 22 A. 299; 7 Thompson, Real Property (Perm. Ed.) §
4110. * * * (E)vidence can be received under appropriate pleadings to show that
there was no delivery. Sweeney v. Sweeney * * * (126 Conn. 391, 394, 11 A.2d 806);
7 Thompson, op. cit., §§ 4120, 4141, 4147; 4 Tiffany * * * (Real Property (3d Ed.)) §
1040. [159 Conn. 562] The party who asserts nondelivery has the burden of proving it
by clear and convincing evidence. 7 Thompson, op. cit., §§ 4120, 4141, 4147; Wright
v. Wright, 77 F. 795, 798 (D.Conn.).' Bell v. Bloom,146 Conn. 307, 308, 309, 150
A.2d 300. The court's conclusion that the defendant acquired no interest in the
property is an inference from the subordinate facts found and is clearly supported by
the finding that there was no legal delivery of the second deed. See Wiley v. London
& Lancashire Fire Ins. Co., supra, 39, 41.

The defendant's next claim is that the court erred in concluding that there was not
intent on the part of the plaintiff to deliver the deed in question. The short answer to
this claim is that delivery always depends upon the intent of the grantor as manifested
by his words and acts, and it is necessarily a question of fact. McDermott v.
McDermott, 97 Conn. 31, 36, 115 A. 638; Humiston v. Preston, 66 Conn. 579, 584, 34
A. 544. The finding amply supports the court's conclusion on this issue.

The final claim of the defendant is that the court erred in admitting into evidence the
other deeds found in Guiseppe's strongbox as bearing on the question of delivery of
the second deed. In an attempt to ascertain whether or not a grantor intended to
deliver a deed, it is proper for the trier of fact to consider the circumstances preceding,
attending, and subsequent to the execution of the instrument. 23 Am.Jur.2d, Deeds, §
109; see also Merrills v. Swift, 18 Conn. 257, 261. Evidence of the execution of other
deeds is sometimes admissible as to the question whether there was the requisite intent
to deliver a particular deed. 26A C.J.S. Deeds § 197, p. 59; see Watson v. Watson,
283 Ala. 214, 219, 215 So.2d 290. To be admissible, the other deeds [159 Conn. 563]
must be shown to be sufficiently connected with the matter at hand so as to fairly cast
light upon it and to assist the trier in making the necessary determination. See 29
Am.Jur.2d, Evidence, § 365. This test of admissibility is met, as in the instant case,
where the other deeds tend to show that the grantor had a common purpose, or where
the execution of all the deeds is inconsistent with an intent to deliver the deed in
question. Ibid.; Napier v. Elliot, 162 Ala. 129, 131, 50 So. 148; Metz v. Metz, 106
S.C. 514, 518, 91 S.E. 864; Mitchell v. Allen, 81 S.C. 340, 344, 61 S.E. 1087; cf.
Jennings v. Reeson, 200 Mich. 559, 166 N.W. 931. Accordingly, it was proper for the
court to admit the other deeds into evidence.

There is no error.

In Straw Pond Assocs., LLC v. Fitzpatrick, Mariano & Santos, P.C., 145 A.3d 292, 167
Conn.App. 691 (Conn. App. 2016), before the Connecticut Court of Appeals, it was stated that

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the defendant attorney was hired by the buyers to facilitate the purchase of a building lot and an
associated right-of-way over an adjacent lot retained by the seller. The attorney was aware of the
agreement regarding the right-of-way at the time of closing in June 2004, but the warranty deed
he obtained for the buyers did not mention the right-of-way. When the buyers inquired about the
right-of-way, the attorney assured them that there was nothing to worry about. However, the
seller's attorney later informed the defendant that the right-of-way was not included in the deed
and proposed steps to rectify the issue. The seller withdrew the offer to cure the defect due to the
lack of response from the defendant attorney. In August 2008, the seller's attorney informed the
defendant attorney that the buyers had built a stone wall on the seller's land. The defendant
attorney then informed the buyers that they did not have a right-of-way over the seller's land. The
seller initiated an injunction against the buyers, who then hired another attorney. The buyers sued
the defendant attorney in March 2009, alleging negligence for failing to include the right-of-way
in the deed and engaging in a continuous course of conduct to prolong the harm from his drafting
error. The defendant attorney claimed that the buyers' claims were barred by the statute of
limitations and filed a motion for summary judgment. The trial court granted the motion for
summary judgment, and the buyers appealed:

In Targonski v. Clebowicz, supra, 142 Conn.App. at 97, 63 A.3d 1001, this court
applied the continuous representation doctrine in the context of a real estate
transaction; id., at 99, 63 A.3d 1001 ; which notably is not litigation, but the statute of
limitations was tolled by the continuous representation doctrine because the plaintiff
buyers were unaware of the defendant attorney's negligence for several years. Id., at
110–11, 63 A.3d 1001. The defendant attorney was retained by the buyers of a
building lot “together with a right-of-way over an adjacent lot retained by the seller....”
Id., at 99, 63 A.3d 1001. The defendant attorney knew of the buyers' and seller's
agreement with respect to the right-of-way at the time he conducted the closing on
behalf of the buyers in June, 2004, but the warranty deed he obtained on behalf of the
buyers did not mention the right-of-way. Id., at 99–100, 63 A.3d 1001. When the
buyers asked whether the right-of-way was included in the deed, the defendant
attorney assured them that there was nothing to worry about. Id., at 100, 63 A.3d 1001.
Subsequently, the seller's attorney informed the defendant attorney that the right-of-
way was not incorporated in the deed and proposed steps to cure the defect. Id. The
seller withdrew the offer to cure in December, 2004, due to the lack of response from
the defendant attorney. Id., at 101, 63 A.3d 1001. In September, 2005, the defendant
attorney represented the buyers when they converted a construction loan to a mortgage
and acquired a small additional piece of land from the seller. Id.

On August 1, 2008, the seller's attorney informed the defendant attorney that the
buyers had built a stone wall on the seller's land. Id., at 102, 63 A.3d 1001. At that
time, the defendant attorney informed the buyers that they did not have a

[167 Conn.App. 721]

right-of-way over the seller's land. The seller initiated an injunction against the buyers,
who retained another attorney to represent their interests. Id. The buyers commenced
an action against the defendant attorney in March, 2009, alleging negligence for
failing to include the right-of-way in the deed and engaging in a continuous course of

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 conduct “to prolong the harm flowing from his drafting error by failing to respond to
the ... letters [from the seller's attorney] proposing to cure the defective deed....” Id., at
102–103, 63 A.3d 1001. The defendant attorney alleged that the buyers' claims were
barred by § 52–577 because his representation

[145 A.3d 312]

ended in July, 2004. Id., at 103, 63 A.3d 1001. The defendant attorney filed a motion
for summary judgment in which he claimed that the buyers could not invoke the
continuous representation doctrine to toll the statute of limitations because the doctrine
was limited in application to litigation matters, and the buyers had failed to present
evidence creating a genuine issue of material fact that he continued to represent them
in the same matter in which he allegedly was negligent. Id., at 104, 63 A.3d 1001. The
trial court granted the motion for summary judgment, and the buyers appealed. Id., at
104–105, 63 A.3d 1001.

After citing the continuing course of conduct doctrine adopted in Watts v. Chittenden,
supra, 301 Conn. at 584–85, 22 A.3d 1214, this court stated that the buyers' appeal
turned on the resolution of “the second element of the continuing course of conduct
doctrine, to wit: whether the defendant [attorney], by his conduct after the alleged
malpractice, breached a continuing duty to the plaintiffs that was related to his initial
wrong.” Targonski v. Clebowicz, supra, 142 Conn.App. at 109, 63 A.3d 1001. In as
much as Targonski concerned the negligent drafting of a deed that the buyers had
signed, “[t]here is no tolling of statutes of limitation in either tort or contract actions
for the failure of an attorney to tell a client that a document drafted by the attorney
could be inaccurate because, once the

[167 Conn.App. 722]

representation of the client is complete and the document executed, any warning
would be ineffective.” (Internal quotation marks omitted.) Id., at 109–10, 63 A.3d
1001. Where an attorney subsequently learns that the document was negligently
drafted even after the representation has ended, the attorney “owes a duty to his client,
which relates back to his original wrong of rendering negligent services to the client,
to correct the results of such prior negligence if he later learns of the negligence at a
time when he has the power to remedy the problems arising from it.” Id., at 110, 63
A.3d 1001. By force of logic, “this duty continues until such time as he takes action to
cure his prior negligence or the opportunity to cure such prior negligence ceases to
exist.” Id. This court concluded that the defendant lawyer could have corrected his
drafting error pursuant to the means suggested by the seller's attorney up until the offer
to cure was withdrawn in December, 2008. Id., at 111, 63 A.3d 1001. This court, thus,
reversed the summary judgment rendered in favor of the defendant lawyer. Id., at 113,
63 A.3d 1001.

Authorities

Gruss v. Miskinis, 130 Conn. 367, 34 A.2d 600 (Conn. 1943)

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Hagearty v. Burns, 4 Conn.Supp. 505 (Conn. Super. 1937)
Kopylec v. Town of North Branford., 130 Conn.App. 146, 23 A.3d 51 (Conn. App. 2011)
Astoria Fed. Mortg. Corp. v. Genesis Ltd. P'ship, 143 A.3d 1121, 167 Conn.App. 183 (Conn.
App. 2016)
Lomartira v. Lomartira, 159 Conn. 558, 271 A.2d 91 (Conn. 1970)
Straw Pond Assocs., LLC v. Fitzpatrick, Mariano & Santos, P.C., 145 A.3d 292, 167 Conn.App.
691 (Conn. App. 2016)

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