author: Borden, J. Berdon, J.,

text:
    Aetna Life and Casualty Company v. Union Trust Company
    (14903)
    Borden, Berdon, Katz, Palmer and Spear, Js.
    Argued June 3
    decision released August 16, 1994

      William H. Narwold, with whom were Charles D. Ray and, on the brief, David D. Legere, for the appellant (defendant).

      J. Paul Johnson, with whom was Gary R. Khachian, for the appellee (plaintiff).
   Borden, J.

The principal issue in this appeal is whether, under the circumstances of this case, a bank is liable to a trust beneficiary for obeying the fiduciary’s instruction to transfer funds out of the fiduciary’s general trust account in payment of the fiduciary’s personal obligation to the bank. The defendant, Union Trust Company, appeals from the judgment of the trial court holding it liable to the subrogee of the trust beneficiary for participation in a breach of trust. The plaintiff, Aetna Life and Casualty Company, in addition to claiming that the trial court was correct, proposes as alternative grounds for affirmance of the trial court’s judgment that the defendant should be held liable on a theory of either conversion or constructive trust. We agree with the defendant’s claim; we find no merit in the plaintiff’s alternative grounds for affirmance; and we therefore reverse the judgment of the trial court.

The plaintiff brought this action to recover money it had paid to the estate of Grace M. Flannigan (estate) as surety for the estate’s fiduciary, attorney James C. Moyer, after Moyer committed a breach of trust by utilizing trust funds to pay off his personal obligations to the defendant. The case was referred to an attorney trial referee, who heard the case pursuant to a stipulation of facts, and filed a report with the trial court. The trial court rendered judgment for the plaintiff.

The parties stipulated to the following facts. On November 13, 1987, the defendant lent $85,000 to Moyer, who on the same date executed a mortgage deed to the defendant on property in Trumbull as security for the loan. In February, 1989, the defendant discovered through an internal audit report and title rundown that the mortgage had not been recorded in the Trumbull land records. Upon subsequently discovering that the property had been sold by Moyer on December 28, 1988, Daniel Glassberg, senior vice-president and general counsel to the defendant, contacted Moyer in March, 1989, and demanded immediate repayment of the loan. According to Glassberg, Moyer stated that he would make payment in full before April 1, 1989. In addition, the defendant conducted a credit search in an unsuccessful attempt to locate assets owned by Moyer to recover the amount due.

On May 2, 1989, Moyer entered the Derby branch of the defendant and instructed the assistant branch manager, Hazel Hummel, to debit an account, specified only by number, in the amount of $93,179.24, and to apply these funds: (1) to pay off the mortgage loan balance of $88,745.19; (2) to pay off another note of Moyer’s that was due to the defendant in the amount of $2433.33; and (3) to deposit $2000 into Moyer’s personal checking account. Hummel carried out Moyer’s request after verifying the balance in the account and the payoff figures for the loans in question. She did not seek to determine the type of account that Moyer instructed to be debited, or whether the loans were Moyer’s personal loans, although this information was available to her in the bank records. She knew, however, because of the numbered code of the account, that it was not a personal account. The transactions were carried out by the defendant’s central processing department on the basis of a debit/credit memo prepared by Hummel.

The account debited, titled “James C. Moyer, Trustee,” was an attorney’s trust account maintained by Moyer, which had been opened by Hummel at an earlier date. Moyer was also the conservator of the estate, appointed by the Shelton Probate Court. Almost all of the funds in the account, namely, $110,285.21 out of $110,300.03, represented proceeds received by Moyer as conservator of the estate in connection with the sale of certain real property of the estate that Moyer had sold. On May 1, the day before Moyer had instructed Hummel to effectuate the transaction at issue, he had, at the defendant’s Westport branch, deposited the sale proceeds check, which had been made out to “James C. Moyer, Conservator,” to his attorney’s trust account.

At some time between May 2 and May 19, 1989, Glassberg became concerned, based on the May 2 transaction, that Moyer might have been converting client funds. Glassberg wrote to the statewide grievance committee. Moyer was subsequently arrested and convicted of a criminal offense, and he resigned from the Connecticut bar.

The plaintiff was surety for Moyer on a bond in the amount of $130,000, filed with the Probate Court in connection with the sale of the property owned by the estate. After dismissing Moyer as conservator, the Probate Court called the bond, which the plaintiff paid in the amount demanded, namely, $123,285.21. The plaintiff sued Moyer and obtained a stipulated judgment in the amount of $123,285.21, which remains wholly unsatisfied.

The plaintiff, as subrogee of the rights of the estate, also made written demand upon the defendant for the payment of the money that had been debited from Moyer’s trustee account and used to pay Moyer’s personal loans from the defendant bank. The defendant disputed liability and the plaintiff commenced this action, claiming damages and the imposition of a constructive trust on the money being held by the defendant.

The matter was presented to the attorney trial referee on four theories of recovery: (1) negligence; (2) participation by the defendant in Moyer’s breach of trust; (3) improper setoff; and (4) conversion. On the basis of the stipulated facts, the referee’s report rejected the plaintiff’s breach of trust, improper setoff and negligence claims. With regard to the conversion claim, the referee recommended that: (1) the trial court adopt, as a matter of law, a broad view of the type of property that is subject to the tort of conversion, and render judgment for the plaintiff; but (2) if, as a matter of law, the court declined to take such a broad view, the court render judgment for the defendant.

The trial court concluded that the defendant was liable because it had participated in Moyer’s breach of trust. The court did not specifically consider either the conversion or constructive trust theories, now advanced on appeal by the plaintiff as alternate grounds on which to affirm the judgment. See Practice Book § 4013. Accordingly, the court rendered judgment for the plaintiff. This appeal followed.

I

The defendant claims that the trial court improperly held it liable for participation in Moyer’s breach of trust. We agree.

It is not disputed that Moyer committed a breach of trust against the estate. The principal issue in this case is whether the defendant should be held liable as a participant in that breach of trust. The defendant argues that it neither knew nor can be charged with knowledge of Moyer’s misapplication of trust funds. The plaintiff concedes that, as the trial court found, no one person in the defendant’s employ had actual knowledge of the misapplication of the estate’s funds. Indeed, the trial court specifically found that no single individual employed by the defendant had actual knowledge that Moyer was misapplying the funds of the estate.

In Titcomb v. Richter, 89 Conn. 226, 93 A. 526 (1915), this court considered a claim by a trust beneficiary against stockbrokers for an accounting of trust funds improperly depleted by the fiduciary, Morris. The plaintiff had entrusted funds to Morris for investment, which Morris deposited in an account with the defendants in the name “Charles E. Morris, Trustee.” The plaintiff sought to hold the defendants liable for Morris’ diversion of her funds.

This court affirmed a judgment for the defendants. We stated that Morris “was bound to account to [the plaintiff] for her property; and if the defendants, knowing of the [fiduciary] relation, aided him in diverting her property from the purposes for which he held it, they would be accountable for it, if it could be traced to their possession.” Id., 229. In determining whether the defendants could be chargeable with such knowledge, we drew on the law applicable to banks, and held that the name under which the trust account was maintained had particular significance.

“Where a known trustee uses trust property for his own purposes . . . bankers and others, who, knowing the facts, aid such trustee in the improper use of the trust property, are accountable to the cestui que trust for the trust property received by them. And where securities bear upon them full evidence that they belong to the trust estate, that fact is sufficient to put a third party, who receives the trust property as security for the trustee’s individual debt, upon inquiry, and to charge him with knowledge of the facts of which such inquiry would have informed him.” Id., 229-30. We contrasted this situation, however, with a case in which the diverted property carries no indication on its face of its fiduciary status. In that instance, “if the [fiduciary] diverts it from the purposes for which he received it, as by paying his own debts with it to one who takes it without knowledge of the diversion, the latter’s title to it is good, and he cannot be called to account by the principal.” Id., 230.

Applying these principles to the facts of the case, we held that the fact that the account was in the name of “Charles E. Morris, Trustee,” without any further specification of the nature of the trust account, was insufficient to put the defendants on inquiry. “[The defendants] clearly would have been justified in believing that [the account] was [Morris’] own property and in carrying through the transactions in question, had he not told them to open the account in his name as trustee. But it is not an unusual thing for a depositor to open an account with his banker or broker in his own name as trustee or agent, or as a special account, where the money deposited is his own and is not in fact held in trust. This may be done to keep this account distinct from others which he has, or contemplates having, with the same bank or broker, when it is desired to devote it to special uses .... The persons receiving such a deposit are not put upon inquiry to learn what the purpose of the party depositing is, or whence he received the money, or whether he is in fact a trustee or agent, and, if so, the character and purpose of the trust or agency. They are bound to hold it as a distinct deposit subject to the checks or orders of the person who deposits it, drawn in his name with the descriptive title or addition assumed by him in opening the account. Morse on Banks & Banking (2d Ed.) 293; Central Nat. Bank v. Connecticut Mut. Life Ins. Co., 104 U.S. 54, 64 [26 L. Ed. 693 (1881)]; Union Stock Yard Bank v. Gillespie, 137 U.S. 411, 416 [11 S. Ct. 118, 34 L. Ed. 724 (1890)].” Titcomb v. Richter, supra, 89 Conn. 230-31.

In the present case, the funds received by Moyer on behalf of the trust beneficiary were deposited in an account in the name “James C. Moyer, Trustee.” The account was Moyer’s attorney trust account and bore no indication that the funds therein were the property of a particular trust beneficiary. Thus, the defendant was not put on inquiry with respect to the transaction at issue.

Although we recognize that much has changed in the banking world since 1915, it is still “not an unusual thing for a depositor to open an account with his banker or broker in his own name as trustee or agent, or as a special account, where the money deposited is his own and is not in fact held in trust.” Id., 230. “We think that the fact that [Moyer] opened the account in his name as trustee did not put the [defendant] upon inquiry as to the real ownership of the money deposited or whether it was in fact trust property. To so hold would require greater vigilance on the part of the [defendant] to protect the plaintiffs interests than [was observed] in intrusting [Moyer with the funds].” Id., 231.

We have not been asked to overrule Titcomb v. Richter, supra, 89 Conn. 226, and because the facts of this case indicate that the considerations underlying Titcomb continue to be relevant, we decline to do so under these circumstances. Because we adhere to the view that the defendant in this case was not on inquiry as to the nature of the funds in Moyer’s general trust account, it is unnecessary to determine whether, under other circumstances, a bank would be held to the collective knowledge of all of its employees and records regarding a particular transaction, as the defendant suggested at oral argument. Even if the defendant in this case were to be held to the knowledge that the funds were taken from a trust account, in this case it would have been under no duty of inquiry as to the nature and ownership of the funds because the account was only in the name of “James C. Moyer, Trustee.”

For the same reasons, we reject the plaintiff’s claim that Hummel was on inquiry notice because she had previously opened Moyer’s account and knew, when she debited the account, that it was not a personal account. Furthermore, despite the defendant’s concession that if Moyer had written a check to pay off his loan the defendant might be liable, we reject a distinction between a check and an electronic transfer evidenced by a debit/credit memo under the facts of this case. Even if Moyer had written a check indicating on its face the name of the account as “James C. Moyer, Trustee,” the defendant would not have been on notice under Tit-comb that the funds were held in trust for the estate.

The plaintiff contends, nonetheless, that regardless of the lack of actual knowledge of Moyer’s misconduct by any single employee of the defendant, the benefit to the defendant resulting from the misapplication of trust funds is sufficient to charge the defendant with knowledge and hold it liable for a breach of trust. We disagree. In a case where the trust account involved is a general trust account and the bank has no duty of inquiry as to the nature and ownership of funds therein, we see no persuasive reason to hold the bank to knowledge of the source of the funds simply because it derives benefit from the transaction involving the funds.

We recognize the line of cases in some states that generally hold a bank to the knowledge of a breach of trust if funds are transferred by a trustee from a trust account in order to pay the personal debt of the trustee to the bank, even though the bank would not be liable for such a payment to a third party due to lack of knowledge. See 4 A. Scott & W. Fratcher, Trusts (4th Ed. 1989) § 324.4. In those cases, however, the accounts were specifically designated as held in trust for the trust beneficiary or bore some other indication on their face that the funds belonged to another. See, e.g., Bank of Giles County v. Fidelity & Deposit Co., 84 F.2d 321 (4th Cir. 1936) (W.W. Walker as Treasurer of the County); Conqueror Trust Co. v. Fidelity & Deposit Co., 63 F.2d 833 (8th Cir. 1933) (“C. A. Stone, local agent of the Farm & Home Savings & Loan Association, Nevada, Missouri”); United States Fidelity & Guaranty Co. v. Union Bank & Trust Co., 228 F. 448 (6th Cir. 1915) (“Walter S. Rainey, Circuit Court Clerk”); Martin v. First National Bank of Rush City, 51 F.2d 840 (D. Minn. 1931) (“Estate of Ernest L. Martin, Incompetent”); Sayre v. Weil, 94 Ala. 466, 10 So. 546 (1891) (D. Weil, trustee for the Goldman children); Allen v. Puritan Trust Co., 211 Mass. 409, 97 N.E. 916 (1912) (Estate of Albert H. Bird, William L. Baker, Trustee); Bischoff v. Yorkville Bank, 218 N.Y. 106, 112 N.E. 759 (1916) (Estate of Josephine F. Schneider by H.F.W. Poggenburg, Executor); Schofield v. Cleveland Trust Co., 149 Ohio 133, 78 N.E.2d 167 (1948) (W. M. Scofield, Trustee of the Estate of Levi T. Scofield); Fidelity & Deposit Co. of Maryland v. Rankin, 33 Okla. 7, 124 P. 71 (1912) (T. A. Neal, as clerk of the United States District Court for the First Judicial District of Oklahoma Territory); United States Fidelity & Guarantee Co. v. Adoue & Lobit, 104 Tex. 379, 137 S.W. 648 (1911) (A.J. Compton, Guardian); Commercial State Bank v. Algeo, 331 S.W.2d 84 (Tex. App. 1959) (account in name of “Hall Walker, Trustee,” but Walker was vice-president, director and managing officer of bank); Bacon v. Wright, 52 S.W.2d 1111 (Tex. App. 1932) (W.S. Wright, guardian for Jimmie D. and Morris McSween, minors); Hall v. Windsor Savings Bank, 97 Vt. 125, 121 A. 582 (1923) (J.C. Enright, Executor of Henry L. Story’s Estate); Brovan v. Kyle, 166 Wis. 347,165 N.W. 382 (1917) (Carroll Lucas, Guardian).

In these cases, in effect, the courts imposed liability on the bank because the specific name of the account put the bank on notice that the funds being used for the bank’s benefit did not belong to the account holder. The same cannot be said where, as in this case, the name of the account indicates no more than that the funds therein may belong to the owner of the account, or to someone else. See Titcomb v. Richter, supra, 89 Conn. 230.

II

The plaintiff advances, as alternative grounds on which to affirm the judgment of the trial court, the claims that, in light of the undisputed facts, the defendant is liable to the plaintiff on either of two legal theories: (1) conversion; or (2) constructive trust. We are not persuaded.

“We have defined conversion as [a]n unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights. ... It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.” (Internal quotation marks omitted.) Moore v. Waberbury Tool Co., 124 Conn. 201, 209, 199 A. 97 (1938); see also Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983); Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979); 1 Restatement (Second), Torts § 222A (1965); D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed. 1968) § 25 (“[a]n action of conversion is a suit for damages by the owner of a chattel or by one entitled to the immediate possession of the chattel, against one who has wrongfully appropriated the chattel . . . in derogation of the rights of the rightful owner or possessor”).

Similarly, “a constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. 76 Am. Jur. 2d, Trusts, § 221, p. 446; see Van Auken v. Tyrrell, 130 Conn. 289, 291-92, 33 A.2d 339 [1943].” (Internal quotation marks omitted.) Zack v. Guzauskas, 171 Conn. 98, 103, 368 A.2d 193 (1976); see also Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983) (constructive trust based upon unjust enrichment).

The tort of conversion and the equitable remedy of constructive trust share a common element: the party sought to be held liable has engaged in conduct that wrongfully has harmed the plaintiff. Both of these theories advanced by the plaintiff under the facts of this case, however, founder on this element. Having con-eluded that the defendant is not liable to the plaintiff for Moyer’s breach of trust under Connecticut law regarding the specific obligations of a bank as applied to this case; see Titcomb v. Richter, supra, 89 Conn. 226; we fail to see why the defendant ought nonetheless be held liable under more general tort or equitable principles. Under the facts of this case, the defendant did not engage in wrongful or unconscionable conduct, and was not unjustly enriched, by receiving the funds from Moyer’s trust account in payment of Moyer’s debts to the defendant.

The judgment is reversed, and the case is remanded with direction to render judgment for the defendant.

In this opinion Katz, Palmer and Spear, Js., concurred.

Berdon, J.,

dissenting. The majority today holds that a bank is not liable to the beneficiary of a trust when the trustee draws from a trust account maintained at the bank, funds to pay the trustee’s personal indebtedness owed to that bank. The defendant Union Trust Company, the depository and creditor bank, concedes that if the defalcating trustee did this by drawing a trust check on the bank to pay his personal indebtedness, it would be liable. Its only claim is that because the funds were electronically transferred within the bank—that is, the bank used a debit/credit memo to transfer the funds from the trust account to the bank itself to pay the trustee’s personal indebtedness—no one person was put on notice that the funds were trust funds.

Recognizing that the defendant’s argument is tenuous, the majority rejects the defendant’s concession that it would be liable if the indebtedness had been paid by a trustee check. Instead, the court relies on Titcomb v. Richter, 89 Conn. 226, 93 A. 526 (1915), to support the position that the bank was not placed on notice because the account was merely labeled as a trust account and not a trust account for a specific beneficiary.

Nevertheless, Titcomb is distinguishable. Titcomb involved a brokerage trustee account in the name of “Charles E. Morris, Trustee.” The trustee, without authority of the beneficiary, breached his fiduciary duty by investing in speculative securities which resulted in a loss of $25,000. The plaintiff in Titcomb sought to hold the brokerage firm liable for the loss to the trust property. By contrast, in the present case the plaintiff merely seeks to hold the bank liable to the extent that it actually benefited from the defalcation of the trustee.

As a matter of law, to the extent that the bank benefited from the trustee’s breach of fiduciary duty, it was put on notice that the funds used to pay the personal debt of the trustee were trust funds. “Where the bank seeks to apply the funds deposited to an indebtedness of the depositor individually to it, it is chargeable with notice that this would involve a breach of trust, although it would not be chargeable with such notice where it had no personal interest in the transaction but was acting merely as a depository.” 4 A. Scott & W. Fratcher, Trusts (4th Ed. 1989) § 324.4, pp. 265-66. “The inference . . . is that the fiduciary is misapplying the funds when he uses them to discharge his personal indebtedness, and the bank is chargeable with notice that he is doing so. It is not proper for the bank to accept in payment of an individual indebtedness a check drawn by the debtor on his account as fiduciary in the same bank or in another bank, or a check payable to him as fiduciary and indorsed by him to the bank.” Id., 268. Indeed, the “weight of authority in the United States . . . is . . . that the bank is liable to the extent that the trust funds so deposited in the trustee’s personal account are used in paying the depositor’s debt to the bank.” Id., 269. In 1994, there should be no difference that is legally relevant between drawing a check on the bank to pay an indebtedness to that bank and using an internal electronic transfer to accomplish the same result.

The distinction drawn by Scott and Fratcher’s treatise between transactions that benefit the bank and transactions that result in money irretrievably leaving the bank is sound. In Titcomb, the improperly invested trust funds were lost forever, so that if the brokerage firm had been held liable, it would have suffered a $25,000 loss despite an arguable lack of notice that there was any impropriety. By contrast, in the present case, to deny the bank the benefit obtained would merely return the bank to the status quo prior to the trustee’s breach of his fiduciary duty; that is, the bank would have the same claim against the trustee individually for an outstanding loan that it had prior to his breach of fiduciary duty.

I would hold that the defendant was liable for its participation in the breach of trust to the extent that it benefited from the breach. Accordingly, I respectfully dissent.

       The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Pursuant to its obligations under its fidelity bond, the plaintiff, Aetna Life and Casualty Company, made whole the conservatorship estate, the estate of Grace M. Plannigan, that was the victim of its fiduciary’s delict. Thus, the plaintiff brought this action as the subrogee of the rights of the estate.

       Practice Book § 4013 provides in relevant part: “[filing appeal] -ADDITIONAL PAPERS TO BE FILED BY APPELLANT AND APPELLEE ....
      “(1) .... If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.”

       We do not imply that it is ethically permissible for an attorney to commingle personal and clients’ funds. See Rules of Professional Conduct § 1.15 (a). The fact that, in this case, Moyer may have violated rule 1.15 (a), however, would not advance the plaintiff’s cause. First, an ethical violation by an attorney does not necessarily impose liability on the attorney’s banker. Second, although the parties stipulated that Hummel had opened Moyer’s trustee account, there is no stipulation regarding when that was done or that she knew, on May 2, 1989, that the account that Moyer ordered to be debited was the account that she had opened for him previously. Moreover, there is no stipulation, and the trial court did not find, that Hummel knew (1) that the account debited was an attorney’s trust account containing clients’ funds, or (2) that such an attorney’s account ought not to contain the attorney’s own personal funds beyond the time necessary for an accounting and severance of the respective interests of the attorney and client. See Rules of Professional Conduct § 1.15 (c). Thus, under the facts of this case, from the defendant’s point of view, this was a trustee account similar to that described in Titcomb v. Richter, supra, 89 Conn. 226.

       We note that General Statutes § 42a-3-307, which became effective on October 1, 1991, states rules of law that, under the Uniform Commercial Code, could have affected this case. The trial court did not consider, and the parties have not briefed or argued, however, either this section or the predecessor parts of the Code that § 42a-3-307 was intended to clarify. General Statutes Ann. § 42a-3-307, Uniform Commercial Code, comment 1 (West Cum. Sup. 1994). Accordingly, we decide this case on the basis on which it was tried and decided in the trial court, and briefed and argued in this court. Pineman v. Oechslin, 195 Conn. 405, 417, 488 A.2d 803 (1985).

       Recognizing that the tort of conversion has traditionally been confined to chattels; but see Omar v. Mezvinsky, 13 Conn. App. 533, 537, 537 A.2d 1039, cert. denied, 208 Conn. 803, 545 A.2d 1100 (1988) (entrusted funds can be subject to conversion), and cases cited therein; the plaintiff argues that: (1) the “chattel” involved here is the defendant’s internal debit and credit memo; or (2) failing that, we should expand our notion of what is subject to conversion to include intangible property rights such as the account at issue here. We need not resolve this claim in the context of this case, because we conclude that, even if we assume that the subject matter of the alleged conversion qualifies for the tort, the plaintiff cannot prevail on its conversion theory.

       Even several of the cases the majority recites from other jurisdictions do not support its claim that an account in the name of a fiduciary clearly labeled as a fiduciary account, but without reference to the name of the beneficiary, does not put the bank on notice. See, e.g., United States Fidelity & Guarantee Co. v. Adoue & Lobit, 104 Tex. 379, 137 S.W. 648 (1911) (A.J. Compton, Guardian); Commercial State Bank v. Algeo, 331 S.W.2d 84 (Tex. App. 1959) (account in name of “Hall Walker, Trustee”); Brovan v. Kyle, 166 Wis. 347, 165 N.W. 382 (1917) (Carroll Lucas, Guardian).

       It is obvious that the majority is uncomfortable with its holding, which is predicated on Titcomb v. Richter, supra, 89 Conn. 226, but their opinion states that this court has “not been asked to overrule” Titcomb. The defendant, however, does not claim it relied on Titcomb to its detriment. Accordingly, to the extent that the holdings or dicta of Titcomb are inconsistent with the more persuasive view articulated by Scott and Fratcher in § 324.4 of their treatise, I would overrule it.


source: Caselaw Access Project

author: Palmer, J.

license: Public Domain

text:
    John Bennett et al. v. Automobile Insurance Company of Hartford
    (14855)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued March 31
    decision released August 16, 1994

      Peter T. Fay, for the appellant (defendant).

      David N. Rosen, with whom was Barbara Goren, for the appellee (plaintiff Lori Misura).
   Palmer, J.

This certified appeal requires us to decide whether the Appellate Court properly reversed the judgment of the trial court ordering a remittitur. We granted the petition of the defendant, Automobile Insurance Company of Hartford, for certification to appeal from the judgment of the Appellate Court, and now reverse.

The relevant facts and procedural history are as follows. The plaintiffs, Lori Misura and John Bennett, were injured in an automobile accident with an unidentified hit-and-run driver while they were traveling in Misura’s automobile in New Haven. They brought this action against the defendant to collect uninsured motorist benefits under Misura’s insurance policy with the defendant. Under the terms of the policy, the defendant was obligated to pay damages for bodily injuries sustained by the occupants of Misura’s vehicle that they would have been legally entitled to recover from the owner or operator of an uninsured motor vehicle. The policy expressly limited the defendant’s liability, however, to $100,000 for any one accident, regardless of the number of covered persons injured.

The complaint originally filed by the plaintiffs made specific reference to the insurance policy and its limit of $100,000 in uninsured motorist coverage. The defendant filed a request to revise the complaint to delete any reference to the limit of $100,000 uninsured motorist coverage of the policy on the grounds that it was irrelevant to any jury issue and that its disclosure would unduly prejudice the defendant. The plaintiffs did not object to the defendant’s request to revise and, accordingly, filed an amended complaint that contained no reference to the policy’s limits of uninsured motorist coverage.

The plaintiffs moved for summary judgment on the issue of liability. The trial court granted the motion, without opposition. Shortly thereafter, the defendant and Bennett agreed to a settlement of his claim against the defendant for $37,115, and Bennett thereupon withdrew his action.

The defendant filed a motion in limine seeking to preclude Misura from introducing any evidence at trial of the policy limits or the amount of insurance coverage available under the policy. The motion, unopposed by Misura, was granted by the trial court. Misura’s action against the defendant then proceeded to trial on the issue of damages. On May 6, 1992, the jury returned a verdict for her in the amount $92,000, and the trial court accepted the verdict and rendered judgment in accordance therewith.

On May 28, 1992, the defendant filed a motion to open the judgment and for a remittitur pursuant to Practice Book §§ 325 and 326 and General Statutes § 52-228. The defendant claimed that the undisputed terms of the policy and General Statutes § 38a-336 (b) required a reduction of the judgment obtained against it by Misura so that the defendant’s total payments to the plaintiffs under the policy did not exceed $100,000.

After a hearing on the motion on July 7, 1992, the trial court concluded that the defendant’s total liability to the plaintiffs under the terms of the policy was $100,000. The court further concluded that because the defendant’s prior payments to the plaintiffs totaled $38,598.89, only $61,401.11 remained available. Accordingly, the trial court granted the defendant’s motion to open the judgment and for a remittitur in the amount of $38,598.89, and rendered a corrected judgment for the plaintiff of $61,401.11, plus interest.

Misura appealed to the Appellate Court, which reversed the judgment of the trial court and remanded the case to that court with direction to reinstate the verdict in full, subject only to a reduction for collateral source payments made to or on behalf of Misura. On appeal to this court, the defendant claims that the Appellate Court was incorrect when it directed the trial court to reinstate the jury’s verdict. We agree with the defendant.

We begin our analysis of the defendant’s claim with a review of § 38a-336 (b). Section 38a-336 (b) requires that an insurer pay its insured up to the limits of the policy’s uninsured motorist coverage after the liability limits of all other applicable insurance policies have been exhausted by payment of judgments or settlements. This statutory subsection, together with the other provisions of the uninsured motorist statute, § 38a-336, reflects the public policy of this state to afford a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the uninsured motorist had maintained an adequate policy of liability insurance. Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). Section 38a-336 (b) also provides, however, that “in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.” This limitation on an insured’s recovery to the maximum amount allowed under the policy’s uninsured motorist provisions serves to avoid the anomaly of a greater recovery under those policy provisions than would have been available from a tortfeasor carrying liability insurance equal to the coverage of the insured. See Smith v. Safeco Ins. Co. of America, supra, 573; see also Nationwide Ins. Co. v. Gode, 187 Conn. 386, 391-92, 392-93 n.6, 446 A.2d 1059 (1982).

Misura acknowledges the general statutory prohibition against a recovery by an insured in excess of the limits of the policy’s uninsured motorist coverage. Moreover, she does not dispute the fact that her insurance policy expressly limited recovery for any one accident to a total of $100,000. She contends, however, that the defendant was required to have pleaded as a special defense the policy’s $100,000 limit and its settlement of Bennett’s claim in order to have limited the plaintiffs’ combined recovery to $100,000. Under the facts and circumstances of this case, we do not agree.

As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 164; Grant v. Bassman, 221 Conn. 465, 472-73, 604 A.2d 814 (1992). The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway. Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973); DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971). Whether facts must be specially pleaded depends on the nature of those facts in relation to the contested issues. See Pawlinski v. Allstate Ins. Co., supra, 6-7; DuBose v. Carabetta, supra, 259-61.

In the circumstances presented here, the defendant’s failure to have pleaded the $100,000 policy limit as a special defense did not deprive it of the benefit of that provision. The complaint originally filed by the plaintiffs expressly alleged uninsured motorist coverage “up to a policy limit of $100,000 per accident,” an allegation that the plaintiffs agreed to delete because, as the defendant claimed, the parties had agreed that (1) the policy limit was $100,000, (2) the policy limit did not raise a jury issue, and (3) its introduction had the potential to prejudice the jury unduly. Because the plaintiffs had already acknowledged the $100,000 policy limit in their complaint, the defendant’s failure to plead that policy provision as a special defense did not preclude the trial court from reducing the jury award in accordance with § 38a-336 (b). See Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985) (“statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them”).

Furthermore, the defendant had repeatedly expressed its understanding, both in its written submissions and in oral argument to the trial court, that in the event the jury returned a verdict for Misura which, together with its obligations under the settlement agreement with Bennett, exceeded $100,000, the verdict would be reduced accordingly by the court. Prior to the verdict, Misura had not contested the propriety of that procedure and, indeed, had indicated that it would be the appropriate one to follow if such a reduction of the verdict were necessary. Misura had ample notice, therefore, that the defendant was relying on the undisputed terms of the policy to limit its liability to the plaintiffs. Thus, because there was no dispute that the plaintiffs’ recovery was limited by the express and unambiguous terms of the policy and Mis-ura was on notice that the defendant intended to seek a reduction, by posttrial motion, of any verdict in excess of the policy limit, the trial court properly reduced the award notwithstanding the defendant’s failure to plead the $100,000 limitation as a special defense.

We also agree with the defendant that its failure to raise as a special defense the settlement agreement that it had entered into with Bennett did not preclude the trial court from granting the defendant’s request for a remittitur. General Statutes § 52-216a expressly prohibits the introduction of evidence concerning settlement agreements or releases in jury trials. That statute was enacted to “ensure that jury verdicts will not be influenced by the knowledge of a partial settlement”; Civiello v. Owens-Corning Fiberglass Corp., 208 Conn. 82, 93, 544 A.2d 158 (1988); thereby “removing whatever possibility for prejudice [that] may exist . . . .” (Internal quotation marks omitted.) Peck v. Jacquemin, 196 Conn. 53, 73, 491 A.2d 1043 (1985). Therefore, in view of the fact that Bennett’s settlement agreement with the defendant was not a disputed issue that required determination by the jury, the introduction at trial of evidence concerning that settlement would have been inappropriate. Furthermore, Misura can claim neither surprise nor prejudice by virtue of the defendant’s failure to have pleaded its settlement of Bennett’s claim, because, as discussed previously, the defendant had fully apprised both the court and Mis-ura of its intention to seek a reduction of any verdict obtained by Misura that, together with the $37,115 it was obligated to pay Bennett, exceeded the policy limit of $100,000.

Accordingly, we conclude that the defendant’s failure to plead as a special defense either the $100,000 limit of the policy’s uninsured motorist coverage or its settlement of Bennett’s claim in the amount of $37,115 did not preclude the trial court from granting the relief sought by the defendant. The trial court correctly reduced the jury award as required by the plain and undisputed terms of Misura’s policy in accordance with § 38a-336 (b), and properly rendered judgment for Mis-ura in that amount.

In view of the issues raised by this appeal, we take this opportunity, pursuant to our supervisory authority over the administration of justice; see State v. Patterson, 230 Conn. 385, 397-98, 645 A.2d 535 (1994); to hold that henceforth an insurer should raise issues of policy limitation, even when undisputed, by special defense. When a jury determination of the facts raised by special defense is not necessary, the special defense will not be submitted to the jury but, rather, will be resolved by the trial court prior to the rendering of judgment. Compliance with this procedure will place the trial court and the opposing party on proper notice of the policy limitation issue so that it may be resolved in accordance with § 38a-336 (b).

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

        Bennett v. Automobile Ins. Co. of Hartford, 32 Conn. App. 617, 630 A.2d 149 (1993).

       We granted the defendant’s petition for certification to appeal limited to the following questions: (1) “Whether the Appellate Court was correct in holding that General Statutes § 38a-336 does not limit the amount of the plaintiffs recovery to the amount of the limits of liability in the insurance policy less the amount paid by the defendant in settlement to a co-plaintiff?” (2) “Whether the Appellate Court was correct in holding that an insurer, in order to take advantage of a limitation of liability in an insurance policy, must plead the policy limits as a special defense where there is no reference to the policy limits in the complaint?” and (3) “Whether the Appellate Court was correct in holding that in an uninsured motorist action in which there are two plaintiffs seeking recovery under a single policy and one plaintiff settles his claim before trial, the defendant must plead the payment of the settled claim as a special defense?” Bennett v. Automobile Ins. Co. of Hartford, 228 Conn. 909, 635 A.2d 1228 (1993).

       This action was originally brought by Lori Misura and John Bennett, the named plaintiff. Bennett withdrew his claim prior to trial, however, and is not a party to this appeal. References in this opinion to the plaintiffs include both Bennett and Misura.

       Misura was driving her automobile and Bennett was a passenger when the accident occurred.

       Both Misura, as the policyholder, and Bennett, as a passenger in her automobile, qualified for uninsured motorist benefits under the terms of Misura’s policy with the defendant.

       The limits of liability clause in the insurance contract provided in relevant part: “Limit of Liability ....
      “B. If a single limit of liability for bodily injury liability is shown in the Declarations for this coverage, this is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident. . . .
      “C. The applicable limit of liability [$100,00.0] ... is the most we will pay regardless of the number of:
      “1. Covered persons;
      “2. Claims made;
      “3. Vehicles or premiums shown in the Declarations; or
      “4. Vehicles involved in the auto accident. . . .”

       Practice Book § 325 provides: “remittitur where judgment too LARGE
      “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the excess may be remitted by the party recovering the judgment, at any time, reasonable notice being first given to the adverse party or his attorney; and the court may thereupon order the record of such judgment to be corrected, and affirm the same for the amount to which it has been remitted.”
      Practice Book § 326 provides: “setting aside or opening judgments
      “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.
      “Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the court.”

       General Statutes § 52-228 provides: “If any judgment is rendered, by mistake or clerical error, for a larger sum than is due, the party recovering the judgment may have the amount of the judgment decreased by remittitur to the amount which is due, provided reasonable notice has been given to the adverse party or his attorney. The court may thereupon order the record of the judgment to be corrected, and affirm the judgment for the amount to which it has been decreased.”

       General Statutes § 38a-336 (b) provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”

       The defendant had not tendered the $37,115 settlement payment to Bennett prior to the July 7, 1992 hearing. At the hearing, however, the defendant testified that it had withheld payment to Bennett only because of the dispute concerning the $92,000 judgment in favor of Misura. The trial court expressed its satisfaction with the reason given by the defendant for the delay in payment, and indicated that payment was to be made upon the court’s resolution of the dispute. We were informed at oral argument that the defendant paid Bennett in full on July 7, 1992, immediately after the trial court rendered its corrected judgment.

       In addition to its settlement with Bennett in the amount of $37,115, the defendant had paid Misura $1483.89 in no fault benefits, for a total of $38,598.89.

       The trial court also stated that its failure to have conducted a hearing on the issue of collateral source payments prior to rendering judgment for Misura in the amount of $92,000 was a “mistake” that warranted the opening of the judgment as requested by the defendant.

       Under the circumstances of this case, the issues raised by the three certified questions; see footnote 2; are so closely related that we discuss them jointly.

       Practice Book § 164 provides: “No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff, release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.”

       “The jury’s only task was to assign the appropriate level of damages arising from the uninsured motorist’s tort. Because the contractual limits did not prove or disprove the plaintiffs’ damages, they were irrelevant.” Bennett v. Automobile Ins. Co. of Hartford, 32 Conn. App. 617, 626-27, 630 A.2d 149 (1993) (Lavery, J., dissenting).

       For example, Misura’s submission in response to the defendant’s motion in limine regarding reference by counsel in closing argument to the issue of damages included the following statement: “Any deductions from what [the] plaintiffs are ultimately entitled to recover are made by the court from the jury award. Assuming for the sake of argument only that [the] defendant would be entitled to a reduction of any damages over $100,000, the reduction would work the same way: the court would make an appropriate adjustment to the jury award.” At the hearing on the defendant’s motion in limine, Misura reiterated her position that any reduction in the jury verdict could properly be made by the trial court.

       Other courts, in acknowledgment of the prejudice that may result from the jury’s consideration of the policy’s undisputed uninsured motorist limits, have also concluded that evidence of such limits should not be considered by the jury and, instead, that the trial court, on proper motion, should reduce a jury verdict in excess of the policy limits so that the judgment complies with the terms of the policy. See, e.g., Alfa Mutual Ins. Co. v. Moreland, 589 So. 2d 169 (Ala. 1991); Allstate Ins. Co. v. Miller, 315 Md. 182, 553 A.2d 1268 (1989); see also Price v. Hart, 166 Wis. 2d 182, 480 N.W.2d 249 (1991).

       General Statutes § 52-216a provides: “reading of agreements or RELEASES TO JURY PROHIBITED. ADJUSTMENTS FOR EXCESSIVE AND INADEQUATE verdicts permitted. An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”

       Misura raises three alternate grounds for affirmance. She first claims that because there was no “mistake or clerical error” in the original judgment, the relief sought by the plaintiff was not available under Practice Book § 325 and General Statutes § 52-228. Although we acknowledge that the applicability of those provisions to the facts of this case is not beyond doubt, we conclude that they provided a sufficient basis, together with Practice Book § 326, for the relief sought. As we have discussed, the defendant had repeatedly and without objection expressed its understanding of the procedure to be followed in the event of a jury verdict in excess of the policy limit, and the trial court structured the trial and the posttrial hearings with that same understanding. Although the defendant should have brought the issue of the policy limit to the attention of the trial court before the court had rendered judgment in accordance with the jury verdict, we believe that the trial court acted within its discretion in rendering a corrected judgment on the defendant’s motion. See Hirtle v. Hirtle, 217 Conn. 394, 398, 586 A.2d 578 (1991) (“Practice Book § 326 vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation”).
      Misura also claims that the defendant should have filed its motion to open the judgment under Practice Book § 320, not under Practice Book § 325. Although a motion under § 320 might have been preferable, we cannot say that the trial court acted improperly in granting the defendant’s motion pursuant to Practice Book §§ 325 and 326 and General Statutes § 52-228.
      Finally, Misura argues that the defendant’s failure to have tendered payment to Bennett until after the trial of her case constituted a waiver of the defendant’s right under the insurance policy and General Statutes § 38a-336 to a reduction of the verdict in an amount equal to the Bennett settlement. We disagree. At no time did the defendant indicate that it did not intend to comply with the terms of the settlement agreement, and it did so promptly upon the resolution of the dispute over the Misura judgment. Moreover, Misura and Bennett were represented by the same trial counsel, who did not raise this issue until after the trial of Misura’s case. In these circumstances, the trial court properly concluded that the defendant was entitled to a reduction of the verdict for Misura in an amount equal to the difference between the $100,000 policy limit and the amount of the Bennett settlement.


author:
Katz, J.
      Norcott, J., with whom Borden, J.,

text:
    First Constitution Bank v. Harbor Village Limited Partnership et al.
    (14782)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued January 7
    decision released August 16, 1994

      Jonathan S. Bowman, with whom was Paul H. Begemann, for the appellant (defendant Fairfield Dock Company, Inc.).

      Jonathan D. Elliot, with whom was Monica M. Coper-tino, for the appellee (plaintiff).
   Katz, J.

The dispositive issue in this certified appeal is whether a mechanic’s lien filed by the defendant, Fairfield Dock Company, Inc., properly executed and indexed in a town’s land records, is valid as against a subsequent encumbrance under the facts of this case if the description of property attached to the certificate of mechanic’s lien became detached prior to the recording of the lien certificate. The plaintiff, First Marine Corporation, appealed from the judgment of strict foreclosure rendered by the trial court following a determination of priority in which the trial court upheld the validity of the mechanic’s lien. The Appellate Court reversed the judgment of the trial court and concluded that the mechanic’s lien was invalid without the attachment containing the complete description of the property. First Constitution Bank v. Harbor Village Ltd. Partnership, 31 Conn. App. 15, 622 A.2d 1063 (1993). We granted the defendant’s petition for certification and now reverse the judgment of the Appellate Court.

The parties’ stipulations and the evidence in the record reveal the following facts. First Constitution Bank (First Constitution), the predecessor in interest to the plaintiff, instituted the present action to recover sums due under a commercial revolving loan note. The note was secured by a mortgage on six contiguous parcels of land (parcels) that are located along the Mianus River on River Road in Greenwich and are owned by Harbor Village Limited Partnership (Harbor Village) and William O. Rockwood, Jr., trustee. The loan proceeds, in the amount of $21,500,000, were used to finance the construction of a marina facility and a dockominium at the site of the parcels.

On March 3, 1989, before the recording of the mortgage, the defendant began to render services and furnish materials in the construction and improvement of the parcels in connection with the marina and dockominium project. On April 16, 1990, the defendant timely filed a certificate of mechanic’s lien on the parcels with the Greenwich town clerk. The certificate of mechanic’s lien described the property to which the lien attached as being “situated in the Town of Greenwich, County of Fairfield and State of Connecticut, on a lot of land belonging to said Harbor Village Limited Partnership and William Rockwood, Jr., Trustee, and bounded as follows: See Exhibit ‘A’ attached. ” (Emphasis added.) The trial court found that the defendant’s attorney, who had prepared the certificate of mechanic’s lien, had also prepared Exhibit A to be attached to that certificate for filing in the town clerk’s office and had personally delivered the certificate, with Exhibit A attached, to the sheriff, now deceased. The lien certificate that ultimately was recorded on the land records, however, did not include Exhibit A, and, consequently, did not contain references to the boundaries and street addresses of the parcels.

Notwithstanding this omission, the Greenwich town clerk correctly noted the street location of the property in the grantor/grantee indices and indexed the lien under the appropriate headings for the defendant, Harbor Village and Rockwood. Additionally, Exhibit A was attached to the copies of the mechanic’s lien certificate that were served on Harbor Village and Rockwood as owners of the parcels, in connection with the recording of the lien. Moreover, Exhibit A was attached to the lis pendens filed on the land records by the defendant in connection with an independent action to foreclose its mechanic’s lien. Finally, at all material times, neither Harbor Village nor Rockwood owned any other property in Greenwich other than the parcels.

By an amended complaint dated December 18,1991, following a default on the loan by Harbor Village, First Constitution instituted a foreclosure action to recover sums due under the loan. In response to First Constitution’s complaint, the defendant claimed that its mechanic’s lien took priority over the mortgage duly recorded by First Constitution. Thereafter, the plaintiff, as successor in interest to First Constitution, filed a motion for determination of priority and for judgment of strict foreclosure, asserting that the defendant’s mechanic’s lien was defective and, therefore, that the defendant’s interest in the parcels, if any, was subsequent to that of First Constitution. Following a hearing on the motion, the trial court concluded that the defendant’s mechanic’s lien was valid and, consequently, was prior in right to the mortgage recorded by First Constitution. Accordingly, the trial court found in favor of the defendant, rendered a judgment of strict foreclosure, and set law days in inverse order of priorities. The plaintiff appealed from the judgment of the trial court to the Appellate Court, which reversed the judgment of the trial court. This appeal by the defendant followed.

The defendant claims that the Appellate Court incorrectly determined that its certificate of mechanic’s lien is invalid. It argues that the mechanic’s lien is valid under General Statutes § 49-34 because the certificate of mechanic’s lien was indexed correctly in the land records and was within the chain of title, and because the certificate, as recorded, referred to the omitted Exhibit A. We agree.

It is well established that a mechanic’s lien “will not be valid unless the person having such claim shall, within a stated time, lodge with the town clerk of the town in which said building is situated a certificate in writing, describing the premises, the amount claimed as a lien thereon, and the date of the commencement of the services or the furnishing of materials. General Statutes §§ 4135, 4136.” Tramonte v. Wilens, 89 Conn. 520, 523, 94 A. 978 (1915). We also have repeatedly stated, however, that, although a mechanic’s lien is in derogation of the common law, we do not compel a strict construction of its requirements. Wilcox v. Woodruff, 61 Conn. 578, 585, 24 A. 1056 (1891). “We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanic’s liens in order to achieve the remedial purposes of the mechanic’s lien statutes.” J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 514, 555 A.2d 990 (1989). We recognize that the remedial purpose of mechanic’s lien law is “to furnish security for a contractor’s labor and materials” and that this beneficent purpose requires “a generous construction.” Seaman v. Climate Control Corp., 181 Conn. 592, 597, 436 A.2d 271 (1980); see J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 514 (generous construction requires only reasonable compliance with statutory provisions).

“In accordance with this policy, our courts have been liberal in validating liens despite claimed errors on the face of the lien certificate where the mistake was made in good faith and no resulting prejudice was claimed. See, e.g., H & S Torrington Associates v. Lutz Engineering Co., [185 Conn. 549, 555-56, 441 A.2d 171 (1981)] (copy of certificate served on owner by a subcontractor failed to state its intent to file a lien); Morici v. Jarvie, 137 Conn. 97, 102, 75 A.2d 47 (1950) (misstatement of amount due); Pierce, Butler & Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934) (subcontractor mislabeled as contractor and agent); Burque v. Naugatuck Lumber Co., 113 Conn. 350, 353, 155 A. 414 (1931) (defect in description); Peck v. Brush, 89 Conn. 554, 556-57, 94 A. 981 (1915) (inclusion of extra land in certificate); Westland v. Goodman, 47 Conn. 83, 86 (1879) (erroneous date of completion of work).” J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 515; see also Halsted & Harmount Co. v. Arick, 76 Conn. 382, 387, 56 A. 628 (1904); Nichols v. Culver, 51 Conn. 177, 180 (1883); Marston v. Kenyon, 44 Conn. 349, 356 (1877). As we have reasoned many times, “we do not think a court of equity can be called upon to declare [a] lien utterly void upon the motion of persons who have lost nothing by [the] mistake.” Marston v. Kenyon, supra, 356.

Therefore, “[w]here the misstatement of the claim is intentional, that is, where the statement of the claim is intentionally false, or where it is fraudulent, the lien will be void; but where it is the result of a mistake, the misstatement of the claim will not invalidate the lien. We apprehend that it would be impossible to differentiate between the mistake in the statement of the claim and the mistake in the description of the property claimed to be covered by the lien.” Tramonte v. Wilens, supra, 89 Conn. 524; see also Rose v. Persse & Brooks Paper Works, 29 Conn. 256, 266 (1860) (mistake as to claim will be treated like mistake as to description of property). Where, however, there has been “no attempt to give an accurate and true description, then . . . the certificate ought to be held void, as no better than a total omission to attempt to comply with its provisions.” (Emphasis added; internal quotation marks omitted.) Tramonte v. Wilens, supra, 525.

Applying these principles to the facts of this case, we conclude that the defendant’s inadvertent failure to include Exhibit A in the recordation does not indicate a failure to attempt to comply with the provisions of § 49-34. The defendant properly executed the lien certificate and served it, along with Exhibit A, on Harbor Village and Rockwood in connection with the recording of the lien. The trial court found that the defendant’s attorney, who had prepared the certificate of mechanic’s lien and Exhibit A to be attached to the certificate for filing in the town clerk’s office, had personally delivered the certificate, with Exhibit A attached, to the sheriff. Exhibit A, the property description in question, sets forth a separate description for each of the six parcels, referring to them as first tract (77-79 River Road), second tract (35 and 41 River Road), third tract (51 River Road), fourth tract (81 River Road), fifth tract (67 River Road) and sixth tract (59 River Road). Somehow Exhibit A became detached from its certificate of lien when it was recorded. In light of the defendant’s demonstrated good faith attempt to comply with the statute, however, it was reasonable for the trial court to have concluded that the defendant’s conduct did not reflect the type of intentional or fraudulent conduct that would be fatal to the lien.

It was also reasonable for the trial court to have concluded that the mistake by someone other than the defendant would not undermine a finding of reasonable compliance with § 49-34. Reasonable compliance with statutory requirements has been routinely measured by whether the lienor’s mistake was made in good faith and by whether prejudice resulted from the mistake. See J. C. Penney Properties, Inc. v. Peter M. San-tella Co., supra, 210 Conn. 515. The certificate of mechanic’s lien will be held invalid “where the certificate is either intentionally false, or so grossly inaccurate as to show that there was no attempt to give an accurate and true description . . . .” Rose v. Persse & Brooks Paper Works, supra, 29 Conn. 266. If neither deficiency exists, we express satisfaction that the statute has been substantially complied with and reject the argument that the lien should be invalidated. See Tramonte v. Wilens, supra, 89 Conn. 526; Shattuck v. Beardsley, 46 Conn. 386, 387-88 (1878).

Once the trial court has assessed the question of good faith, as it relates to the issue of reasonable compliance, it must then determine whether there was prejudice as a result of the claimed mistake. J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 515. The plaintiff concedes that there was no prejudice whatsoever to First Constitution as a result of Exhibit A having become detached. The mistake did not impact the plaintiff’s conduct in any way. Work on the property by the defendant had begun prior to and continued long after the recording of the mortgage securing the loan from First Constitution.

Generally, the most obvious way to gauge prejudice is to examine the notice to the landowner, other lien holders and prospective lien holders. In this case, because neither the plaintiff nor the landowners can claim a lack of notice or prejudice, the real issue as it relates to the question of prejudice is one of notice to third parties. The claim before us, however, relates solely to whether the certificate of mechanic’s lien, as recorded, reasonably satisfied that requirement.

In the context of mortgages, we have recognized that “[mjany 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.” (Internal quotation marks omitted.) Connecticut National Bank v. Lorenzato, 221 Conn. 77, 83, 602 A.2d 959 (1992). If we begin with the land records; Connecticut National Bank v. Esposito, 210 Conn. 221, 230, 554 A.2d 735 (1989) (“land records are the starting point for inquiry and not the ending point”); the uncontradicted testimony indicates that the existence of the lien was apparent from the title search of the Greenwich land records. The certificate of mechanic’s lien filed by the defendant recites that the defendant furnished materials and rendered services on a lot of land “situated in the Town of Greenwich, County of Fairfield and State of Connecticut . . . belonging to said Harbor Village Limited Partnership and William O. Rockwood, Jr., Trustee, as bounded as follows: See Exhibit ‘A’ attached.” Neither Harbor Village nor Rockwood owned any other property in Greenwich. As a result, the Greenwich town clerk correctly noted the property location in the grantor/grantee indices and indexed the lien under Fairfield Dock, under Harbor Village and under Rockwood. Moreover, the lis pendens filed on the land records by the defendant when it commenced the foreclosure of its mechanic’s lien included Exhibit A and therefore contained the full legal description of the property. Finally, the plaintiff twice acknowledged in its own foreclosure complaint that the defendant claimed to have an interest in the premises by virtue of a mechanic’s lien, setting forth in detail the pertinent dates and volumes and pages of both the mechanic’s lien and the lis pendens.

In Connecticut National Bank v. Esposito, supra, 210 Conn. 230, we concluded that, although “the mortgagee in recording its deed had inadvertently omitted documentation containing important information about the amount of the mortgage obligation,” the recordation was nevertheless “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.” Connecticut National Bank v. Lorenzato, supra, 221 Conn. 83. Similarly, in Lorenzato we drew the distinction between the defective execution and the defective recording of a mortgage deed where the “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.” Id.

The issue before the court in Lorenzato was whether a properly executed, but defectively recorded, mortgage deed was valid. Although we do not decide today whether to apply the same standard in determining the validity of a defectively recorded mortgage and the validity of a defectively recorded mechanic’s lien, we are free to consult other areas of the law for guidance, particularly when similar guiding policies are in play. In some instances, we have “reach[ed] back 169 years for the most cogent analogy.” J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 517. As an example, in discussing the mechanic’s lien statute in J. C. Penney Properties, Inc., this court analogized to law relating to the recording of a deed. Referring to Pendleton v. Button, 3 Conn. 406 (1820), a case in which the defendant had proposed to prove title to certain land with a deed that had never been acknowledged in writing, we remarked “that a certificate of mechanic’s lien under General Statutes § 49-34 is sufficiently like a deed of land to make Pendleton dispositive of this case.” J. C. Penney Properties, Inc. v. Peter M. San-tella Co., supra, 517.

We recognize that there are clear differences between a mortgage and a mechanic’s lien. A mechanic’s lien, unlike a mortgage, is “not an agreement or contract between parties but rather a lien upon real estate which the plaintiff seeks to take by force of law and eventually to foreclose.” City Iron Works, Inc. v. Frank Badstuebner Post No. 2090, 22 Conn. Sup. 230, 231, 167 A.2d 462 (1960). Unlike a mortgage deed, which may be reformed to reflect the contracting parties’ mutual intent, the placement of a mechanic’s lien is a unilateral act in which the lienor bears the burden of demonstrating statutory compliance. Nevertheless, reliance on mortgage law for the sole purpose of assessing whether notice was sufficient is appropriate. Although the differences in the origins of these two liens might affect a determination as to whether the execution was defective, such differences play no role in assessing whether there has been a defective recording. In both mortgage law and mechanic's lien law, the issue is whether the inadvertent mistake in recordation of a properly executed lien gave sufficient notice to put a title searcher on inquiry.

In this case, the Greenwich town clerk correctly noted the street location of the property in the grantor/grantee indices and indexed the lien under the appropriate headings for the defendant, Harbor Village and Rockwood. Accordingly, the trial court noted in its memorandum of decision that the land records themselves indicated that the defendant was claiming a mechanic’s lien on property owned by Harbor Village and Rockwood and that a reasonable party searching the records would therefore conclude that a mechanic’s lien could apply to all such properties. Additionally, the trial court noted that because the recorded certificate of mechanic’s lien explicitly referred to “Exhibit ‘A’ attached” for a description of the property, and because Exhibit A was not attached, “[t]he mistake [was] obvious.” Thus, under the facts and circumstances of this case, the trial court properly concluded that a reasonable party searching the land records would not have been misled.

Finally, the plaintiff relies on this court’s decision in J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 511, in which we held that a mechanic’s lien was invalid because the certificate of lien did not contain a written oath sworn to by the signer despite uncontradicted evidence that the oath had been administered orally. That decision is not, however, inconsistent with the decision we reach in this case. A certificate that does not contain a written oath does not demonstrate on its face that the facts contained in the document are true. Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 578, 620 A.2d 118 (1993). Both J. C. Penney Properties, Inc., and Red Rooster Construction Co. deal with the necessity of an oath to establish the veracity of the document's contents, not whether the recording sufficiently placed a title searcher on notice that a mechanic had not been paid.

The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the plaintiff’s remaining claims.

In this opinion Berdon and Palmer, Js., concurred.

Norcott, J., with whom Borden, J.,

joins, dissenting. The majority disregards the plain language of General Statutes § 49-34 and the case law interpreting it. That statute requires a certificate of mechanic’s lien, with a description of the property to be encumbered, to be lodged with the town clerk in order to create a valid mechanic’s lien. The defendant Fairfield Dock Company, Inc., has conceded in all phases of this litigation that it failed to lodge such a certificate with the Greenwich town clerk. That omission is a failure to comply with a key statutory element required to create a valid mechanic’s lien. Without such compliance, the defendant’s actions result in a nullity. Because the concept of reasonable compliance with a statutory scheme should not be stretched to encompass a complete lack of compliance with the terms of a statute, I dissent from the majority opinion.

The plain language of § 49-34 provides in relevant part that “[a] mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials . . . .” (Emphasis added.)

It is clear that the term “describing the premises” requires a description of the property to be encumbered by the mechanic’s lien. The defendant has conceded throughout this litigation that no description of the premises intended to be encumbered by its mechanic’s lien was lodged with the town clerk or recorded in the Greenwich land records. By failing to identify the property encumbered by the lien, the defendant has failed to comply with a statutory element required to perfect a mechanic’s lien. General Statutes § 49-34. Unlike the majority, I am unwilling to equate “reasonable compliance” with the specific statutory provisions with a complete lack of compliance with one of the enumerated statutory elements.

The majority does not apply our long-standing and recently reiterated standard for determining whether a mechanic’s lien is valid under the statute: “In interpreting [the mechanic’s lien statute] we are guided by well-settled principles of construction. . . . Even bearing in mind the statute’s beneficent purpose, we are, however, constrained by the language of the statute as we find it, and cannot rewrite the statute or adopt the reasoning of precedents in other jurisdictions with different statutes. Camputaro v. Stuart Hardwood Corporation, [180 Conn. 545, 550, 429 A.2d 796 (1980)]; New Haven Orphan Asylum v. Haggerty Co., 108 Conn. 232, 236, 142 A. 847 (1928); Hartford Builders Finish Co. v. Anderson, 99 Conn. 343, 345, 122 A. 76 (1923).” Seaman v. Climate Control Corp., 181 Conn. 592, 597, 436 A.2d 271 (1980). “We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanic’s liens in order to achieve the remedial purposes of the mechanic’s lien statutes. Provisions of mechanic’s lien law should be liberally construed so as to reasonably and fairly implement its remedial intent. H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). We have also recognized, however, that such a policy has limitations: [T]he principles that guide our interpretation of mechanic’s lien legislation are well settled. Although this legislation creates a statutory lien in derogation of the common law . . .its remedial purpose to furnish security for a contractor’s labor and materials requires a generous construction. . . . Generosity of spirit does not, however, permit departure from reasonable compliance with the specific provisions of the statute. Stone v. Rosenfield, [141 Conn. 188, 191, 104 A.2d 545 (1954)]; City Lumber Co. v. Borsuk, [131 Conn. 640, 645, 41 A.2d 775 (1945)]. (Citations omitted.) Camputaro v. Stuart Hardwood Corporation, [supra, 550-51].” (Internal quotation marks omitted.) J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 514, 555 A.2d 990 (1989).

The majority has substituted for this standard, which measures the purported lienor’s conduct against “reasonable compliance”; see id.; with the statute, a different standard: whether “the defendant’s inadvertent failure to include Exhibit A in the recordation . . . indicate[s] a failure to attempt to comply with the provisions of § 49-34.” I agree that the defendant attempted in good faith to comply with the statute. If all that were needed to comply with the terms of § 49-34 were an attempt to comply with the statute, however, it would be difficult to imagine a case in which a defective lien certificate would ever fail to render a purported lien valid.

Moreover, Tramonte v. Wilens, 89 Conn. 520, 94 A. 978 (1915), upon which the majority relies, is not to the contrary. In that case, as in all of the cases cited therein as well as all of the cases cited by the majority in which this court rejected claimed defects in the lien certificates, there was a certificate lodged with the town clerk, as required by the statute, from which reasonable compliance with the statute could be measured. Thus, in that case as well as all of the previously mentioned cases, the lienor’s “attempt” to comply was measured, not by his conduct in preparing the certificate, but by the certificate itself. In those cases, the court compared the recorded lien certificate against the statutory requirement. That cannot be said for the majority’s analysis in this case.

The majority also asserts that because third parties had constructive notice of the purported lien of the defendant, that constructive notice reasonably satisfied the requirements of § 49-34. The majority relies on the law of mortgages to support this proposition. “ ‘[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.’ . . . Connecticut National Bank v. Lorenzato, 221 Conn. 77, 83, 602 A.2d 959 (1992).” The majority further states that “we drew the distinction between the defective execution and the defective recording of a mortgage deed where the ‘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.’ ” Such reliance displays a basic misunderstanding of the different statutory schemes governing mortgages and mechanic’s liens, and the differences between the two encumbrances.

Simply stated, notice to third parties, constructive or otherwise, is irrelevant to the validity of a mechanic’s lien. Because a mechanic’s lien will be senior in priority to other encumbrances filed prior to the mechanic’s lien, so long as the mechanic has commenced work or begun to furnish materials to the property to be encumbered prior to the recording of the intervening encumbrances, third parties will often not have notice of a subsequent mechanic’s lien that will be senior in priority to their own claim. This lack of notice has no bearing on the validity of the mechanic’s lien.

Conversely, third parties can have constructive notice of a purported mechanic’s lien that is invalid. We have held that failure to append a written recital of the oath administered to the lienor invalidates a duly recorded mechanic’s lien. J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 518. We have also held that the failure to conduct a formal ceremony in connection with the statutory oath invalidates a mechanic’s lien. Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 579, 620 A.2d 118 (1993). In these two cases, the mechanic’s lien was invalid because of its failure to comply with the applicable statutory provisions regarding administering or memorializing an oath. In both cases the mechanic’s liens had been duly lodged with the town clerk, and recorded in the relevant land records in accordance with all other statutory requirements, including a description of the property encumbered. Constructive notice to third parties was achieved by these invalid liens. Having required strict adherence to the statutory formality of a written oath, actually administered to the lienor, I see no reason to ignore the statutory requirement of a description of the premises to be encumbered.

Because the majority ignores long-standing precedents of this court, and promulgates a decision that is inconsistent with mechanic’s lien jurisprudence and the ordinary rules of statutory construction, I dissent, and would affirm the judgment of the Appellate Court.

       Although several defendants have been named in this foreclosure action, Fairfield Dock Company, Inc., is the sole defendant to appeal. Accordingly, for purposes of this appeal, the term defendant refers only to Fairfield Dock Company, Inc.

       The substitute plaintiff, First Marine Corporation, appealed as successor in interest to First Constitution Bank. In this opinion we will refer to First Marine Corporation as the plaintiff.

       We granted certification limited to the following issues: (1) “Does a different standard apply in determining whether or not defectively recorded mortgages, as opposed to defectively recorded mechanic’s liens, are valid, if both are properly executed?” and (2) “Was the Appellate Court correct in holding that a certificate of mechanic’s lien, properly executed, and properly indexed in the Greenwich Land Records, but whose property description became detached prior to recording, is invalid?” First Constitution Bank v. Harbor Village Ltd. Partnership, 226 Conn. 906, 625 A.2d 1377 (1993). Because the second certified issue is dispositive of the appeal, we need not reach the first certified issue.

       Three of the parcels are owned by Harbor Village and three are owned by Rockwood. Each parcel bears its own street address.

       The mortgage securing the loan from First Constitution was duly recorded on May 8, 1989.

         Exhibit A provides:
      “schedule a (property description)
      FIRST TRACT (COMMONLY KNOWN AS 77-79 RIVER ROAD):
      All that certain piece or parcel of land with all the buildings and improvements thereon, situated in the Town of Greenwich, County of Fairfield and State of Connecticut, shown and described as Parcel D on the certain map entitled, ‘Map Showing Properties Surveyed for Harbor Village Limited Partnership and William O. Rockwood, Jr., Trustee, Greenwich, CT,’ certified substantially correct on 5 December ’86 by Raymond Redniss #10046, revised 12/18/86, 2/9/87 and 3/23/87, which map is on file in the office of the Greenwich Town Clerk as Map No. 6355.
      Together with riparian and littoral rights extending from said Mean High Water Line at the westerly side of the tidal waters of the Mianus River as established in August, 1985 to the northerly side of the Connecticut Turnpike right of way (a non-access highway line) and the westerly side of the Federal Channel of the Mianus River as established by the United States Army Corps of Engineers.
      Together with all rights of access to and from the channel of the Mianus River, of wharfing and docking out, of piaraga and .bulkheading, and all other franchises and riparian rights appurtenant and incidental to the ownership of the upland property, and all right, title and interest of Grantor in and to the land under the Mianus River insofar as the same are appurtenant to the upland property.
      SECOND TRACT (COMMONLY KNOWN AS 35 AND 41 RIVER ROADl:
      All that certain piece or parcel of land with all the buildings and improvements thereon, situated in the Town of Greenwich, County of Fairfield and State of Connecticut, as shown'and described as Parcels 1 and A on the certain map entitled ‘Map Showing Property of William O. Rockwood, Jr., Trustee, Greenwich, CT,’ certified substantially correct on 5 December ’86 by Raymond Redniss #10046, revised 12/18/86, 2/9/87 and 3/23/87, which map is on file in the office of the Greenwich Town Clerk as Map No. 6355.
      Together with rights contained in a certain Deed from John Barney to The Gustav H. Johanson Corp., dated April 4, 1955 and recorded in Volume 532 at Page 392 of the Greenwich Land Records.
      Together with riparian and littoral rights extending from said Mean High Water Line at the westerly side of the tidal waters of the Mianus River as established in August, 1985 to the northerly side of the Connecticut Turnpike right of way (a non-access highway line) and the westerly side of the Federal Channel of the Mianus River as established by the United States Army Corps of Engineers.
      Together with all rights of access to and from the channel of the Mianus River, of wharfing and docking out, of piaraga and bulkheading, and all other franchises and riparian rights appurtenant and incidental to the ownership of the upland property, and all right, title and interest of Grantor in and to the land under the Mianus River insofar as the same are appurtenant to the upland property.
      THIRD TRACT (COMMONLY KNOWN AS 51 RIVER ROAD):
      All that certain piece or parcel of land with all the buildings and improvements thereon, situated in the Town of Greenwich, County of Fairfield and State of Connecticut, shown and described as Parcel B on the certain map entitled ‘Map Showing Properties Surveyed for Harbor Village Limited Partnership and William O. Rockwood, Jr., Trustee, Greenwich, CT,’ certified substantially correct on 5 December ’86 by Raymond Redniss #10046, revised 12/18/86, 2/9/87 and 3/23/87, which map is on file in the office of the Greenwich Town Clerk as Map No. 6355.
      Together with riparian and littoral rights extending from said Mean High Water Line at the westerly side of the tidal waters of the Mianus River as established in August, 1985 to the northerly side of the Connecticut Turnpike right of way (a non-access highway line) and the westerly side of the Federal Channel of the Mianus River as established by the United States Army Corps of Engineers.
      Together with all rights of access to and from the channel of the Mianus River, of wharfing and docking out, of piaraga and bulkheading, and all other franchises and riparian rights appurtenant and incidental to the ownership of the upland property, and all right, title and interest of Grantor in and to the land under the Mianus River insofar as the same are appurtenant to the upland property.
      FOURTH TRACT /COMMONLY KNOWN AS 81 RIVER ROADl:
      All that certain piece or parcel of land with all the buildings and improvements thereon, situated in the Town of Greenwich, County of Fairfield and State of Connecticut, shown and described as Parcel E on the certain map entitled, ‘Map Showing Properties Surveyed for Harbor Village Limited Partnership and William O. Rockwood, Jr., Trustee, Greenwich, CT,’ certified substantially correct on 5 December ’86 by Raymond Redniss #10046, revised 12/18/86, 2/9/87 and 3/23/87, which map is on file in the office of the Greenwich Town Clerk as Map No. 6355.
      Together with riparian and littoral rights extending from said Mean High Water Line at the westerly side of the tidal waters of the Mianus River as established in August, 1985 to the northerly side of the Connecticut Turnpike right of way (a non-access highway line) and the westerly side of the Federal Channel of the Mianus River as established by the United States Army Corps of Engineers.
      Together with all rights of access to and from the channel of the Mianus River, of wharfing and docking out, of piaraga and bulkheading, and all other franchises and riparian rights appurtenant and incidental to the ownership of the upland property, and all right, title and interest of Grantor in and to the land under the Mianus River insofar as the same are appurtenant to the upland property.
      FIFTH TRACT (COMMONLY KNOWN AS 67 RIVER ROADl:
      All that certain piece or parcel of land with all the buildings and improvements thereon, situated in the Town of Greenwich, County of Fairfield and State of Connecticut, shown and described as Parcel 3 on the certain map entitled, ‘Map Showing Properties Surveyed for Harbor Village Limited Partnership and William O. Rockwood, Jr., Trustee, Greenwich, CT,’ certified substantially correct on 5 December ’86 by Raymond Redniss #10046, revised 12/18/86, 2/9/87 and 3/23/87, which map is on file in the office of the Greenwich Town Clerk as Map No. 6355.
      Together with riparian and littoral rights extending from said Mean High Water Line at the westerly side of the tidal waters of the Mianus River as established in August, 1985 to the northerly side of the Connecticut Turnpike right of way (a non-access highway line) and the westerly side of the Federal Channel of the Mianus River as established by the United States Army Corps of Engineers.
      Together with all rights of access to and from the channel of the Mianus River, of wharfing and docking out, of piaraga and bulkheading, and all other franchises and riparian rights appurtenant and incidental to the ownership of the upland property, and all right, title and interest of Grantor in and to the land under the Mianus River insofar as the same are appurtenant to the upland property.
      SIXTH TRACT /COMMONLY KNOWN AS 59 RIVER ROADl:
      All that certain piece or parcel of land with all the buildings and improvements thereon, situated in the Town of Greenwich, County of Fairfield and State of Connecticut, shown and described as Parcels 2 and C on the certain map entitled, ‘Map Showing Properties Surveyed for Harbor Village Limited Partnership and William O. Rockwood, Jr., Trustee, Greenwich, CT,’ certified substantially correct on 5 December ’86 by Raymond Red-niss #10046, revised 12/18/86, 2/9/87 and 3/23/87, which map is on file in the office of the Greenwich Town Clerk as Map No. 6355.
      Together with riparian and littoral rights extending from said Mean High Water Line at the westerly side of the tidal waters of the Mianus River as established in August, 1985 to the northerly side of the Connecticut Turnpike right of way (a non-access highway line) and the westerly side of the Federal Channel of the Mianus River as established by the United States Army Corps of Engineers.
      Together with all rights of access to and from the channel of the Mianus River, of wharfing and docking out, of piaraga and bulkheading, and all other franchises and riparian rights appurtenant and incidental to the ownership of the upland property, and all right, title and interest of Grantor in and to the land under the Mianus River insofar as the same are appurtenant to the upland property.”

       The recording fees paid by the defendant reflect that only two pages of the intended five page document were recorded. The original two page certificate that was actually recorded, without Exhibit A, was returned to the defendant’s attorney.

       On March 27, 1991, the defendant brought its own action to foreclose on its mechanic’s lien, filing a notice of lis pendens, with Exhibit A attached, on the land records and serving the same on Harbor Village and Rockwood.

       General Statutes § 49-33 (d) provides: “If any instrument constituting a valid encumbrance upon such land other than a mechanic’s lien is filed for record while the building is being constructed, raised, removed or repaired, or the lot is being improved, or the plot of land is being improved or subdivided, all such mechanic’s liens originating prior to the filing of that instrument for record take precedence over that encumbrance and no such mechanic’s lien shall have priority over any other such mechanic’s lien. That encumbrance and all such mechanic’s liens shall take precedence over any mechanic’s lien which originates for materials furnished or services rendered after the filing of that instrument for record, but no one of the mechanic’s liens originating after the filing of that instrument for record has precedence over another. If any lienor waives or releases his lien or claim of precedence to any such encumbrance, that lien shall be classed with and have no priority over liens originating subsequent to that encumbrance.”
      Because the defendant’s date of commencement of the work was prior in time to the recording of the mortgage securing the loan from First Constitution, it is undisputed that the defendant’s mechanic’s lien, if valid, took precedence over the mortgage.

       General Statutes § 49-34 provides: “certificate of lien to be recorded and notice given to owner. A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.”

       It is telling that the owners of the property brought a separate application to discharge the defendant’s mechanic’s lien on grounds unrelated to those at issue in the case before us.

       In support of its argument that the Appellate Court’s decision was correct in concluding that the lien was invalid, the plaintiff also has pointed to other jurisdictions. As we noted in Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 365, 585 A.2d 1210 (1991), the language of our mechanic’s lien statutes differs from similar provisions in other states so that precedents from other states are of limited value in interpreting our statutes.

       General Statutes § 49-34 provides: “certificate of lien to be recorded and notice given to owner. A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.”

       In this connection, in both of the cases cited by the majority in which we rejected claimed deficiencies in the description of the premises liened, there was a certificate lodged with the town clerk that contained a reasonably adequate description of the premises. See Burque v. Naugatuck Lumber Co., 113 Conn. 350, 155 A.2d 414 (1931); Peck v. Brush, 89 Conn. 554, 94 A. 981 (1915).

       Constructive notice is relevant to the enforceability of a mortgage against third parties because of the different legal requirements for the creation of an encumbrance against the grantor of a mortgage, and its perfection against third parties. When a mortgage is signed by the grantor and grantee, it is effective to create a security interest in favor of the grantee from the grantor. Recording is not necessary. To perfect the security interest against third parties, the mortgage must be recorded. Conversely, the means of creating a security interest encumbering property of the person for whom the mechanic has performed services or rendered materials, and perfecting that security interest against third parties, under the mechanic’s lien statute, is unitary. In order both to create and to perfect a security interest with a mechanic’s lien, the certificate of mechanic’s lien, with a description of property, must be lodged with the relevant town clerk. Were the mechanic just to execute the lien certificate, he would not have a security interest against either the owner of the property or third parties.