Stolzman v. Wyman
| Decision Date | 11 November 1898 |
| Citation | 77 N.W. 285,8 N.D. 108 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Frederick Stolzman against Henry Wyman, as receiver of the Globe Investment Company, and Benjamin Gathercole. There was a judgment for plaintiff and defendant Gathercole appeals.
Morrill & Engerud, for appellant.
Benton & Bradley, for respondent.
Action by Fredrick Stolzman to quiet title in himself to a certain tract of land in Cass County. Plaintiff claims ownership by purchase from one William Schultz on or about March 15, 1892 and alleges that the defendants claim an estate or interest in said land adverse to the plaintiff, and asks that they be required to disclose the nature of their interest. Henry Wyman was sued as receiver of the Globe Investment Company. He makes no appearance. The defendant Benjamin Gathercole answered in denial, and also by way of counterclaim, wherein he alleged that William Schultz, plaintiff's grantor, on the 15th day of July, 1889, executed and delivered to the Globe Investment Company his promissory note, with coupon interest notes attached, for the sum of $ 1,300, with interest at the rate of 7 per cent. per annum, payable semi-annually, with a further provision that in case said note was not paid at maturity the interest then remaining unpaid should draw interest at the rate of 12 per cent. per annum (both principal and interest being payable at the office of the Globe Investment Company, in Boston, Mass.) that, to secure the payment of said note and interest, the said Schultz executed and delivered to said Globe Investment Company a mortgage upon the land here in controversy, which said mortgage was duly recorded in the proper county; that the defendant Gathercole on or about July 30, 1889, duly purchased said note and mortgage from said investment company, paying therefor the full face value thereof, and the said note was duly indorsed by said investment company and delivered to said defendant, and said mortgage was duly assigned and delivered to defendant, but said assignment was never recorded in the county where the land is situated; that said defendant is now the owner and holder of said note and mortgage, and that the principal sum of said note, with interest as therein provided, since the maturity thereof, is due and entirely unpaid; further, that when plaintiff purchased said land from said Schultz the amount of said note was treated as a part of the purchase price, and plaintiff assumed and promised and agreed to pay the same. Upon this counterclaim the usual judgment and decree of foreclosure, with judgment for deficiency against plaintiff is prayed. We find in the record no reply to this counterclaim, but the case was tried upon the theory that a reply setting up an equitable estoppel had been served, and we shall so treat it. On the trial there was no dispute about the facts. An agreed statement was filed, including the substantial...
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