Simmons v. Stern

• Citation: 9 F.2d 256
• Decision Date: 13 November 1925
• Docket Number: No. 6984.,6984.
• Parties: SIMMONS et al. v. STERN.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

9 F.2d 256 (1925)

SIMMONS et al. v. STERN.

No. 6984.

Circuit Court of Appeals, Eighth Circuit.

November 13, 1925.

F. A. Catron, of Santa Fé, N. M. (C. C. Catron, of Santa Fé, N. M., on the brief), for appellants.

Francis C. Wilson, of Santa Fé, N. M., for appellee.

Before LEWIS and KENYON, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge.

This appeal is taken from a decree of foreclosure of a mortgage upon land in New Mexico. The plaintiff filed a bill alleging the execution and delivery to the plaintiff of a mortgage by the defendants Seth K. Simmons and Em May Weaver Simmons upon the land in question, to secure the payment of a promissory note for the sum of $5,000. The note was dated at Santa Fé, N. M., and promised to pay to the order of the plaintiff $5,000, at Santa Fé, three years after date, with interest at 12 per cent. per annum from the date of the note until it was paid, the interest being payable semiannually. The note was signed by the defendants Seth K. Simmons and Em May Weaver Simmons. J. J. Simmons was made a party defendant; the bill alleging that he was in possession of the land, claiming title thereto by reason of a deed from the other defendants executed subsequently to the date of the mortgage. The execution of the note and mortgage was admitted in the answers of Seth K. Simmons and Em May Weaver Simmons, but was denied in the answer of J. J. Simmons. The answers alleged that the plaintiff had executed and delivered a release of the mortgage, which had been duly recorded, set forth the deed of conveyance from the other two defendants to J. J. Simmons at a time subsequent to the recording of the plaintiff's mortgage, and denied the allegations in the bill as to the amount claimed to be due. At the trial of these issues evidence was offered on behalf of plaintiff and the defendants. The court found that the amount due upon the note secured by the mortgage was the amount stated therein as the principal, with interest at the rate of 10 per cent. from the date of the note until the date of the decree, and allowed an additional sum as attorney's fees to the plaintiff. A sale of the mortgaged premises was ordered in satisfaction of the amounts found due. From this decree the defendants have prosecuted this appeal.

1. Appellants' first contention is that there was no proof of the execution or existence of the mortgage. The objection is not maintainable on behalf of Seth K. Simmons or Em May Weaver Simmons, because the execution of the mortgage was admitted by the answer. It was denied by J. J. Simmons, although his answer also pleaded that the mortgagee had executed and delivered to the mortgagors a release of the mortgage. It is said that the mortgage was not offered in evidence. The certificate of the trial judge to the transcript of the evidence does not state that it is a complete transcript of all the evidence given (see equity rule No. 75), but states that it contains all of the evidence material to hearing the appeal; but it appears from the transcript that a copy of the alleged mortgage was attached to the plaintiff's bill, and the plaintiff was called as a witness and testified, without objection, that he was the mortgagee, the payee in the note and mortgage set up as an exhibit and made a part of the complaint, identified the note, which was then offered in evidence, and again testified, without objection, that it was secured by the mortgage described in the bill of complaint.

This testimony tended to identify the plaintiff as the payee named in the note and mortgage, and to show the fact of the existence of a mortgage, duly executed, having the terms and conditions of the instrument attached as an exhibit to the plaintiff's bill. This testimony stated an opinion of the legal effect of the instrument and was secondary evidence of the writing itself, but when such testimony is given without objection it is to be considered, and to be given weight according to its natural probative effect, as if it were legally admissible. This is the general rule as to the effect as proof when no objection is made, of evidence such as hearsay, Schlemmer v. Buffalo, Rochester, etc., Ry., 205 U. S. 1, 9, 27 S. Ct. 407, 51 L. Ed. 681; Diaz v. United States, 223 U. S. 442, 450, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1138; Rowland v. St. Louis & S. F. R. R. Co., 244 U. S. 106, 108, 37 S. Ct. 577, 61 L. Ed. 1022; Spiller v. Atchison, T. & S. F. Ry. Co., 253 U. S. 117, 130, 40 S. Ct. 466, 64 L. Ed. 810; Central R. Co. of New Jersey v. Sharkey, 259 F. 144, 146, 170 C. C. A. 212; legal conclusions, Young v. McKee, 13 Mich. 552, 554; Graves v. State, 121 Ind. 357, 358, 23 N. E. 155; Pennsylvania Co. v. Stanley, 10 Ind. App. 421, 427, 37 N. E. 288, 38 N. E. 421; Webb v. O'Donnell, 28 Minn. 369, 370, 10 N. W. 140; Iowa Business Men's Building & Loan Ass'n v. Fitch, 142 Iowa, 329, 335, 120 N. W. 694; and secondary evidence of the contents of written instruments, United States v. McCoy, 193 U. S. 593, 598, 24 S. Ct. 528, 48 L. Ed. 805; Kansas City So. Ry. v. Albers Comm. Co., 223 U. S. 573, 596, 32 S. Ct. 316, 56 L. Ed. 556; Board of Sup'rs v. Thompson, 122 F. 860, 863, 59 C. C. A. 70; In re A. O. Brown & Co. (D. C.) 189 F. 432, 437; Damon v. Carroll, 163 Mass. 404, 408, 409, 40 N. E. 185; Jouanneau v. Shannon, 4 La. Ann. 330, 331; Packwood v. White, 7 La. Ann. 31, 33; Ryan v. Young, 147 Ala. 660, 668, 41 So. 954; McFadden v. Fritz, 110 Ind. 1, 5, 10 N. E. 120; Riehl v. Evansville Foundry Ass'n, 104 Ind. 70, 74, 3 N. E. 633; Goodall v. Norton, 88 Minn. 1, 3, 92 N. W. 445; Moore v. McKinley, 60 Iowa, 367, 373, 14 N. W. 768; Beckham v. Cayton (Tex. Civ. App.) 262 S. W. 840; 23 Corp. Jur. 39.

When testimony is given, without objection, by one who claims to own a note and mortgage, of such ordinary facts and opinions as the existence and character of such instruments, and the accuracy of a written copy of them, it may be said, in the language of this court in George Adams & Frederick Co. v. South Omaha Nat. Bank, 123 F. 641, 649, 60 C. C. A. 579, 587: "When, therefore, convincing testimony like that under consideration, which no one in the ordinary transactions of life would feel inclined to distrust, is offered and admitted, one who invokes the aid of some technical rule of evidence to secure its exclusion, and thereby suppress the truth, should see to it that his objection is made in due form, at the proper time, and that his exception is properly taken and assigned, if, on account of the admission of such testimony, he expects to secure a reversal of the judgment by an appellate court."

2. One of the defenses pleaded was the execution and delivery by the plaintiff of a release of the mortgage. The execution of the release was admitted, but the plaintiff denied that it had been delivered. Evidence was given upon this issue, and the court found that no delivery of the release had been made. It is claimed that this conclusion is not supported by the evidence. J. J. Simmons purchased the land after the mortgage had been recorded, did not undertake to plead or prove that he was a bona fide purchaser without notice of this mortgage, and on the trial admitted that he took his deed with notice of the mortgage. The defendants relied on a presumption of delivery of the release, arising from possession of the release, and from the fact that it was recorded. The testimony showed that the release was executed by the plaintiff and was placed in the possession of the plaintiff's attorneys, so that it could be delivered to the mortgagor without delay, if he should be able to pay the debt. In some manner the release came into the possession of the officer of a bank at Santa Fé, N. M., and was delivered by him to J. J. Simmons. The evidence is undisputed that the plaintiff never delivered the release to the defendants nor to any of their agents, to the bank officer, or to any one except the plaintiff's attorneys, nor authorized such delivery to be made. The evidence overthrew the presumption of delivery, and justified and required the finding that no delivery had been made to the defendants.

3. The appellant claims that the amount found to be due upon the note and mortgage is too large, because the loan was usurious. The decree allowed the plaintiff to recover interest upon the note and mortgage, not at the rate of 12 per cent., as provided by the note, but at the rate of 10 per cent. per annum from the date of the note to the date of the decree. Sections 1 and 2 of chapter 162, Sessions Laws of New Mexico 1919, p. 343, provide as follows:

"Section 1. ...