Pennypacker v. Latimer

• Decision Date: 05 June 1905
• Citation: 81 P. 55,10 Idaho 625
• Parties: PENNYPACKER v. LATIMER
• Court: Idaho Supreme Court

81 P. 55

10 Idaho 625

PENNYPACKER v. LATIMER

Supreme Court of Idaho

June 5, 1905

Judgment affirmed, with costs to respondent.

AILSHIE J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

A rehearing was granted in this case and counsel for the respective parties have filed additional briefs and reargued the case. The appellant has devoted most of his brief to a discussion of the proposition that it was unnecessary for the assignee of the note and mortgage to record his assignment, and that the recording laws of this state have no application to such an instrument, and that the assignee was not chargeable with negligence for a failure to record it. The view we take of this case makes it unnecessary for us to pass upon that question here. It would seem, however, that, under our recording laws, a purchaser of mortgaged realty who has neither actual nor constructive notice of the assignment of the mortgage and debt secured thereby would be justified in applying directly to the mortgagee, who appears by the official records to be the holder of the encumbrance upon his realty, and that he would be protected by law in procuring from the mortgagee such release of the encumbrance as would clear the record title. But we rest our decision upon an entirely different question, and therefore decline to pass upon this point. After a further examination of the case, we are of opinion that whether or not the defendant succeeded in establishing the agency of the Bunnell & Eno Investment Company to collect the principal and interest in this case for the assignee, sufficient facts and circumstances have been developed, as disclosed by the record, to justify a court of equity in applying the doctrine of estoppel to the assignee, Pennypacker. It is quite clear from the facts of the case that either the appellant or respondent must suffer the loss of the amount represented by this note and mortgage. Such being the case, by all the known rules of equity and good conscience, that loss should fall upon the one whose action and conduct, or inaction when action was necessary, has induced or made possible such loss. It seems to us that the conduct of the appellant has contributed the greater cause toward the loss in this case. The contract and agreement accompanying the assignment of the note and mortgage is as follows:

"For value received the Bunnell & Eno Investment Company hereby agrees as to the annexed note made by James F. Belk and Sarah M. Belk to said company or order for eight hundred and fifty 00-100 dollars, dated March 1, 1902, and secured by mortgage of even date therewith:

"First. That it will pay semi-annual interest thereon at the rate of six per cent per annum one day after the same becomes due in case of default in payment thereof by the maker.

"Second. That in the event of the nonpayment of the principal of said note when the same becomes due and payable it will pay to the owner and holder thereof within two years after its maturity eight hundred and fifty 00-100 dollars principal, or such part of said sum as may remain unpaid on said note.

"Third. That it will make such payments of interest and principal at the office of William McGeorge, Jr., Bullit Building Philadelphia, Pennsylvania. Provided, that at any time the said The Bunnell & Eno Investment Company shall render to the legal holder of said note the sum of eight hundred and fifty 00-100 dollars principal or such part of said sum as may be unpaid thereon with accrued interest, the said holder shall thereupon indorse without recourse and deliver said note together with the mortgage securing the same, properly...