Jones v. Hall
| Decision Date | 21 May 1931 |
| Docket Number | 6751. |
| Citation | 300 P. 232,90 Mont. 69 |
| Parties | JONES v. HALL et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Blaine County; John Hurly, Presiding Judge.
Action by Ida O. Jones against Fred C. Hall and others. Judgment for plaintiff, and defendant named and others appeal.
Reversed and remanded.
R. F Gaines, of Butte, for appellants.
D. J Sias, of Chinook, and Hurd, Hall & McCabe, of Great Falls for respondent.
This action to foreclose a mortgage was commenced by plaintiff against Hall and wife, mortgagors, Amos and wife, subsequent mortgagees, and others who defaulted.
The facts are that on January 22, 1917, the defendants Hall executed to the Dakota-Montana Mortgage Company, a corporation, a promissory note for $1,000 due November 1 1920; attached thereto were four coupon notes representing the interest due on the note at the rate of 6 per cent. per annum, payable on November 1 of the years 1917, 1918, 1919, and 1920; and to secure payment of the same, a mortgage dated January 22, 1917, upon real estate in Blaine county. The mortgage was recorded on January 29, 1917. The notes provided that after maturity the interest should be the highest contract rate allowed by the state in which the security was located. The mortgage provided that the interest after maturity should be 12 per cent. per annum. The note was indorsed by the payee to one John R. Raube of Fond du Lac, Wis., and contemporaneously the payee, the mortgage company, by instrument dated February 10, acknowledged February 12, 1917, assigned the mortgage to Raube, and the same was recorded in Blaine county on March 6, 1917. Raube died; pursuant to probate proceedings the note and mortgage, on October 28, 1928, was assigned by Raube's executor to Bertha Pleuss, Herbert C. Raube, William C. Raube, and Reinhold Raube, who later assigned the same to plaintiff--the assignments to plaintiff were delivered to her December 27, 1928. Under date of November 26, 1928, Bertha Pleuss swore to an "affidavit of renewal," which substantially complies with section 8267, Revised Codes 1921, in which she made the following allegation: "That the amount of the debt or obligation secured by said mortgage was the sum of $1,000, and that the amount thereof remaining unpaid at the time of this affidavit is the sum of $1,000 together with interest from November 1, 1920." This was filed for record with the county clerk of Blaine county on December 24, 1928. Three days later D. J. Sias, as attorney for Ida O. Jones, made a like affidavit in which he swore that the "amount thereof remaining unpaid at the time of this affidavit is the sum of $1,000 together with interest from November 1, 1920." On March 29, 1929, Mr. Sias, as attorney for Ida O. Jones, the plaintiff, began an action to foreclose the mortgage. In the complaint it was alleged that Pleuss and Sias had made the affidavits referred to, and the same were annexed thereto as Exhibits B and C. In the complaint it was alleged also that Fred C. Hall and Anna Hall, his wife, defaulted in the payment of the principal of the promissory note, but continued to pay interest upon the principal down to the first day of November, 1921, but have made no further payments of principal or interest.
The rule is well settled that inconsistency between two or more allegations contained in a single cause of action is fatal, if both cannot possibly be true as a matter of fact, and either is essential to make out a sufficient case. 1 Abbott's Trial Briefs, 656; Reed v. Poindexter, 16 Mont. 294, 40 P. 596; White v. Hagbery, 54 Mont. 593, 172 P. 1034.
The defendants Hall answered, admitting the execution of the note and mortgage and that the instruments referred to in plaintiff's complaint had been filed for record; that they had not paid the indebtedness represented by the promissory note; other allegations were denied. They also pleaded that plaintiff's cause of action was barred by the provisions of section 9029, Revised Codes 1921. The defendants Amos answered, admitting that the defendants Hall had borrowed $1,000 from the mortgage company, and had executed a written promissory note evidencing the indebtedness, and that the exhibits annexed to the complaint are true copies of the documents which appear of record; but they denied that they had any knowledge or information thereof sufficient to form a belief as to many other essential allegations in the complaint. They also pleaded the bar of the statute. They alleged that on or about September 22, 1928, the defendants Hall had borrowed from them the sum of $606.60, and had executed and delivered to them a grant deed, which was intended as a mortgage to secure the sum loaned by them to the defendants Hall. The deed contains a description of the land described in plaintiff's mortgage.
The defendants Amos alleged that they did not desire a foreclosure of their mortgage, but stated that, in the event that it should be determined that plaintiff was entitled to a foreclosure, they prayed that their mortgage be decreed to be superior to plaintiff's mortgage.
Plaintiff, by replies, denied the allegations contained in the several affirmative defenses of the defendants, but she did not deny the asserted claim of interest of the defendants Amos.
Upon the trial plaintiff introduced in evidence the principal note and the mortgage given to secure the same, as well as the assignments purporting to convey the same to her.
Over objection as to the competency of the evidence and the qualification of the witness to testify, R. S. Harbolt testified that at one time, not stated definitely, he had in his possession the $1,000 note, and that the interest was paid thereon "up to November 1, 1921." Also over objection he testified that Fred C. Hall and Anna Hall in November, 1920, executed five coupon notes evidencing the interest to become due on the $1,000 note; these being made payable November 1 of the years 1921, 1922, 1923, 1924, and 1925. Harbolt claimed the note payable November 1, 1921, had been paid; the other four, over objection, were received in evidence. They are dated at Great Falls, Mont., under date of November 1, 1920. Each is for the sum of $70, payable to the order of the Dakota-Montana Mortgage Company, and each recites that it is "interest due on that day [the date of its maturity] on my note of even date herewith." It is notable that the $1,000 note was signed by Anna Hall by mark, while the so-called interest notes introduced in evidence bear the purported signature "Anna Hall."
On cross-examination the witness said that he did not remember whether he had seen the "interest" notes signed or not. He saw Mrs. Hall sign the original note by making her mark. "I couldn't say that I ever saw her sign her name, just witnessed her mark," he said. He did not know how the note due November 1, 1921, was paid. His testimony on this vital point rests upon his having found a letter from The Dakota-Montana Mortgage Company, Plentywood, Mont., dated October 12, 1921, addressed to him at Chinock, saying "Herewith we hand you the following interest and commission notes for collection." Included was "Fred C. Hall, $70," and after that there was written the word "Paid" in Harbolt's handwriting. He did not know, independently of this notation, that Hall had paid it or to...
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