Cochran v. Stewart

• Decision Date: 15 June 1894
• Docket Number: No. 8760.,8760.
• Citation: 57 Minn. 499
• Parties: DAVID M. COCHRAN <I>vs.</I> LEVI M. STEWART <I>et al.</I>
• Court: Minnesota Supreme Court

57 Minn. 499

DAVID M. COCHRAN vs. LEVI M. STEWART et al.

No. 8760.

Supreme Court of Minnesota.

Argued May 25, 1894.

Affirmed June 15, 1894.

Appeal by plaintiff from an order of the District Court of Hennepin County, Charles M. Pond, J., made December 26, 1893, denying his motion for a new trial.

William Clendenin was on November 1, 1856, the owner of the southeasterly part of Block 82 in Minneapolis fronting southeast 339 feet on Hennepin avenue between Fourth and Fifth streets. He and wife on that day gave a power of attorney to Gordon Jackins authorizing him to sell and convey any and all his real estate. Under this power Jackins conveyed this real estate on June 27, 1859, to Reuben Fenderson. He and wife on November 26, 1862, conveyed to Levi M. Stewart, one of the defendants in this action. But Clendenin had mortgaged the property on June 6, 1857, to Harvey Vinal of Springfield, Ohio, to secure the payment of two notes, one for $216 due in six months and the other for $1,416 due in one year. On August 31, 1858, Vinal sold the notes to Simon P. Snyder and William K. McFarlane, doing business at Minneapolis under the firm name of Snyder & McFarlane. At their request Vinal made a transfer on the back of each note and made a separate assignment of the mortgage. The name of the purchaser was left blank in all three of these instruments.

Snyder & McFarlane were indebted to David M. Cochran of Springfield, Ohio, $2,128.33, for which sum he held their note dated that day. For his security they inserted his name in the assignment on the back of each note and also delivered to him the assignment of the mortgage without filling in the name of an assignee. On May 11, 1859, Snyder & McFarlane wrote to Cochran that if he would reassign the notes and mortgage they would pay him $1,600 on their note to him. He thereupon wrote on each of the Clendenin notes an assignment thereof by him, but left a blank for the assignee's name. He then sent the notes with the assignment of the mortgage still in blank to his agent, J. C. Williams, at Minneapolis, to be delivered to Snyder & McFarlane upon payment by them of $1,600 which he was to indorse on their note. They paid the $1,600 by check of Joseph Ogby & Co. on a bank in Philadelphia, Pa. The check proved to be worthless. They received from Williams the two notes and inserted in the assignments thereon the name of Reuben Fenderson as assignee. They also received the assignment of the mortgage and inserted therein the name of Ivory F. Woodman as assignee. He assigned the mortgage to Fenderson, and Fenderson on June 29, 1859, borrowed $500 of Jesse L. Wetmore and as security assigned to him the two notes and mortgage. He took them in good faith without notice of any infirmity in Fenderson's title. Wetmore did not record his assignment until March 27, 1863. He foreclosed the mortgage June 4, 1863, under a power therein and William S. Chapman of San Francisco, Cal., became the purchaser at the foreclosure sale. No redemption was made and he on August 29, 1865, conveyed to defendant, Levi M. Stewart.

David M. Cochran, finding the check for $1,600 to be worthless, repudiated his transfer of the Clendenin notes and mortgage and commenced an action September 10, 1860, against Simon P. Snider, William K. McFarlane, Ivory F. Woodman, Reuben Fenderson and William Clendenin to set aside his transfer and to foreclose the mortgage. Jesse L. Wetmore was not made a party to the action. Such proceedings were had that on May 11, 1863, a decree was entered that Cochran was as against those defendants still the owner of the Clendenin notes and mortgage and directing a sale of the real estate to pay the debt. The sale was made by the sheriff July 23, 1863, to David M. Cochran for $2,350. This sale was confirmed, no redemption was made and on April 5, 1867, he commenced the present action of ejectment against Levi M. Stewart and Warner P. Curtis, his tenant, to recover possession of the property. A jury was waived, and on February 29, 1870, the issues were tried before C. E. Vanderberg, then a judge of the District Court. He, on March 30, 1872, filed his findings and decision for plaintiff. The defendants moved for a new trial, but were denied. On appeal that order was reversed. Cochran v. Stewart, 21 Minn. 435.

David M. Cochran died intestate at Springfield, Ohio, unmarried and without issue. His father, Robert Cochran, inherited his property. The father died testate and his will was admitted to probate in Hennepin County, June 6, 1892, and this property was assigned to his son, A. P. Linn Cochran, and he was substituted as plaintiff in the action. A second trial was had December 8, 1892, before Chas. M. Pond, Judge, without a jury. He made findings and ordered judgment for defendants. In a note attached to the findings the Judge said:

The question is, who was the real owner and entitled to the possession of the Clendenin notes and mortgage at the time of their foreclosure by Jesse L. Wetmore. Was he then entitled to them as collateral security for the payment of the Woodman note for $500 or was David M. Cochran then entitled to them as collateral security for the payment of the Snyder & McFarlane note for $2,128.33? This question was directly passed upon by the Supreme Court upon evidence not differing materially from that now before this court, and the court there held that Wetmore was the lawful owner of the notes and mortgage for value and in good faith, and had the right of...