Siwooganock Guaranty Savings Bank v. George E. Cushman Et Ux

• Decision Date: 02 November 1937
• Parties: SIWOOGANOCK GUARANTY SAVINGS BANK v. GEORGE E. CUSHMAN ET UX
• Court: Vermont Supreme Court

195 A. 260

109 Vt. 221

SIWOOGANOCK GUARANTY SAVINGS BANK v. GEORGE E. CUSHMAN ET UX

Supreme Court of Vermont

November 2, 1937

October Term, 1937.

Foreclosure of Mortgage---Finding as to Terms of Acceptance of Loan---As to Delivery of Mortgage---As to Presentation of Attorney's Bill---As to Letter Showing Disposition of Proceeds---As to Negotiations for Prior Loan---As to Services of Attorney re Loan---As to Disposition of Loan Papers---As to Where Loans Made and Recording as Evidence Thereof---As to Directions for Disposition of Proceeds---As to Payment of Attorney's Bill re Earlier Loan---As to Discharge of Earlier Mortgage and Necessity of Recording Discharge---As to Designation of Witnesses to Mortgage---As to Bills Payable from Proceeds of Loan---As to Taking of Premises in Satisfaction of Other Loans---As to Effect of Handing Mortgage and Note to Attorney---As to Application of Sums Claimed to Be Wrongfully Deducted---Application of Rule as to Instrument Signed and Delivered with Blanks Not Filled in---Finding as to Amount Due Under Tax Provisions of F. H A. Mortgage Where Blanks in Application Filled in by F. H. A Agent---Accord and Satisfaction Defined---Effect of Disputed Set-off---Language Necessary in Making Offer of Settlement---Effect of Letter of Protest---Acceptance and Cashing of Check Held to Constitute Accord and Satisfaction---Failure to Find Nothing Due Under Insurance Clause---Necessity of Incorporating Conclusions in Findings---Assumption Inferences Made from Facts Found---Facts Regarding Making of Loan Held Inferable---Place Where Note and Mortgage Accepted as Place Where Made---Inferences Held Not Precluded by Refusal to Find Facts---Motion to Dismiss at Close of Evidence---Right of State to Forbid Acquisition of Land by Corporations---Foreign Corporations Allowed by Comity to Enforce Debts against Land---P. L. 5992 and 5988 to Be Construed Together---Not Intended to Prohibit Enforcement of Contracts of Foreign Savings Banks Made outside State---Making Loans out of State on Land in State Not Doing Business---Foreign Savings Bank Held Not Doing Business in Making Loan---Effect on Right to Foreclose of Making Appraisal, Searching Title and Procuring Insurance in State---Of Mortgage Provision Respecting Rents etc.---Of Provision for Collection in Trust of Installments of Taxes and Insurance---P. L. 5984, Foreign Corporation as Trustee under Mortgage, Not Applicable---P. L. 886 and No. 50, Acts of 1937, Defining Doing Business, Not Applicable.

1. In suit in equity to foreclose mortgage, exception to finding that one of defendants was informed by treasurer of plaintiff bank that his application for loan would be granted provided he could procure the loan to be insured by federal housing administration, held without merit, though plaintiff had to sign application for loan, where evidence showed that defendants made all preliminary arrangements and told treasurer that federal housing administration would insure loan, and treasurer said that if it was insured it was acceptable.

2. In such suit, finding that attorney carried mortgage to plaintiff's banking rooms in New Hampshire in order to obtain proceeds of loan for defendants and to expedite payment of their obligations to workmen and others who had made repairs upon mortgaged real estate, held supported by evidence.

3. In such suit, finding that part of proceeds of loan were applied to payment of attorney's bill there presented against defendants, held without error as meaning only that bill was against defendants and was presented to plaintiff bank, though it was expressly found that attorney never presented bill to defendants and never demanded payment from them.

4. In such suit, finding that letter from plaintiff bank to defendants showed how proceeds of loan were disposed of, objected to on ground that letter did not show payment of attorney's bill out of proceeds, held harmless though letter did not specifically mention payment of attorney's bill but informed defendants of total amount disbursed, which was sufficient to put defendants upon inquiry before cashing check for balance enclosed with letter.

5. In such suit, finding setting forth letter sent by plaintiff bank to one of defendants early in negotiations for mortgage replaced by one in suit, objected to as being immaterial and irrelevant, held proper as showing part of history of dealings between parties and as showing what relationship attorney who performed services in connection with both loans subsequently had to respective parties.

6. In such suit, finding as to substance of services performed by attorney in connection with mortgage, objected to because it did not include services for making appraisal and abstract and reporting them to plaintiff bank, held harmless since such services were trivial, involving the making of a new appraisal and checking title subsequent to abstract made three months earlier in connection with mortgage on same property replaced by mortgage involved.

7. In such suit, finding that attorney took final loan papers to Burlington, where office of federal housing administration was located, held harmless as against objection that attorney only took note there.

8. In such suit, finding that various mortgage loans to persons other than defendants on Vermont real estate were made by plaintiff bank at its banking rooms in New Hampshire, or that at least there was no evidence contra, objected to on ground that record of instruments in Vermont was prima facie evidence of their delivery there, held proper, and supported by evidence of plaintiff's treasurer that mortgages and money were turned over in plaintiff's bank.

9. In such suit, exception to finding that plaintiff bank paid out of proceeds of loan various parties that it was instructed to pay by federal housing administration, on ground that there was no evidence that such administration instructed plaintiff to pay interest on note given by one of defendants or to pay attorney's bill, held without merit, since finding did not refer to these two items but to payments to other parties for labor and materials furnished for repairs to mortgaged property.

10. In such suit, finding that defendants never made any objection to payment of attorney's fees in connection with earlier loan, excepted to on ground that finding was irrelevant and immaterial and not a fair statement, the evidence being uncontradicted that defendants did not know how earlier bill was paid, held without error, since exhibit in handwriting of one of defendants, written prior to making of second loan and showing amount of fees and legal expenses in connection with first loan, refuted claim of lack of knowledge, and since finding had some tendency to show by whom attorney was employed in connection with second loan.

11. In such suit, finding that plaintiff bank discharged mortgage securing earlier loan and handed discharged mortgage and note secured thereby to attorney held without error as against objection that under P. L. 2617 writing on mortgage does not constitute discharge until recorded on margin of record of mortgage, since as between parties surrender to attorney as defendants' agent of cancelled note and mortgage and his acceptance thereof constituted discharge.

12. In such suit, finding that above signatures of witnesses to mortgage appeared words "Signed, Sealed and Delivered" and failure to find that words "in presence of" also appeared, held harmless.

13. In such suit, finding that list of bills to be paid out of proceeds of loan was mailed or delivered by one of defendants to federal housing administrator and was list transmitted by his executive assistant to plaintiff bank, objected to as without evidence and not warranted by evidence, held harmless, if error, though letter in which list was enclosed was excluded and there was no evidence that executive assistant wrote it or transmitted enclosures, where defendants admitted there was evidence that bank had received instructions from housing administration as to how checks were to be made and with reference to payment of bills, and where assistant subsequently sent bank copy of letter to defendant stating that it was understood additional funds would be held in trust and used to pay all outstanding obligations contracted in connection with property.

14. In such suit, objection to use of word "obliged" in finding that plaintiff bank had cut and sold hay from premises in Vermont which it was obliged to take in satisfaction of mortgage debt, held without merit, use of word "obliged" being of no particular consequence where premises had been taken in satisfaction of mortgage debts in default.

15. In such suit, exception to refusal of chancellor to find as requested that when defendants handed note and mortgage to attorney after execution, they permanently parted with possession with intent, so far as evidence disclosed, that mortgage should take effect immediately, held without merit since evidence showed defendants knew note and mortgage could not be effective until loan could be insured and note and mortgage delivered to plaintiff bank.

16. In such suit, finding that defendants never directed plaintiff bank to apply to amounts becoming due under mortgage, sums claimed by them to have been wrongfully deducted from proceeds of loan, held to be sustained by evidence.

17. Rule that if party to instrument intrusts it to another for use, with blanks not filled out, such instrument carries on its face implied authority to fill up blanks necessary to perfect it with matter in general conformity to character of instrument, and that as between such party and innocent third persons, person to whom instrument is intrusted must be deemed the agent of party who committed...