Terry v. Durand Land Co.

• Decision Date: 25 May 1897
• Citation: 112 Mich. 665,71 N.W. 525
• Court: Michigan Supreme Court
• Parties: TERRY v. DURAND LAND CO. ET AL.

71 N.W. 525

112 Mich. 665

TERRY v. DURAND LAND CO. ET AL.

Supreme Court of Michigan

May 25, 1897

Appeal from circuit court, Shiawassee county, in chancery; Stearns F. Smith, Judge.

Action by Katherine W. Terry against the Durand Land Company and others to foreclose a mortgage. From a judgment for plaintiff, defendants appeal. Affirmed.

Will H Brunson (Fedewa & Walbridge, of counsel), for appellants.

John H Bissell, for appellee.

LONG C.J.

This bill was filed to foreclose a mortgage given by Charles C. De Camp and wife to Walker & White, of St. Johns, for $3,000 due in three years, with interest at 7 per cent., payable semiannually, and covering property in Durand, Shiawassee county. The mortgage was made May 12, 1888. On October 16 1888, Walker & White assigned it to Anita M. McDermott, of Morristown, N. J., who on October 25th following, by her attorney in fact, Frederick T. Sibley assigned it to the complainant in this case. June 11, 1888, De Camp and wife conveyed the premises covered by the mortgage to the Durand Land Company. This deed contains a covenant by which the grantee assumed and agreed to pay the mortgage. At this time Walker & White were doing business at St. Johns, Clinton county, consisting principally of loaning money for other parties, taking mortgages, and conducting a general real-estate business. Some time thereafter they organized what was known as the Michigan Mortgage Company, Limited, the business being carried on by Walker & White. The power of attorney from Anita M. McDermott to Mr. Sibley, under which he acted in transferring the mortgage to the complainant, is shown in this record. After the mortgage was assigned to her, the interest was paid thereon through Mr. Sibley, the payments being made for the mortgagor by the Michigan Mortgage Company. Certain parcels of land were from time to time released from the lien of the mortgage as the Durand Land Company made sales. It is contended upon the part of the defendants that this mortgage was paid in the following manner: That on July 8, 1892, a note and mortgage were executed by the president and secretary of the Durand Land Company for $3,500, running to the Michigan Mortgage Company as mortgagees; that $3,000 of these moneys were credited on the books of the Michigan Mortgage Company to Frederick T. Sibley, and the moneys so received were paid by the Durand Land Company to the Michigan Mortgage Company for the purpose of paying off and discharging complainant's mortgage; that Frederick T. Sibley and John H. Bissell, of Detroit, attorneys at law, have been for the last 15 years the agents of Anita M. McDermott and the complainant, and had full authority to do anything with all the mortgages and notes belonging to them that each of said parties could have done, respectively; that the Michigan Mortgage Company, Limited, ever since its organization, has been the general agent of Sibley & Bissell, with full power to receive payments, the principal and interest on all notes and mortgages belonging to clients, the principals of Sibley & Bissell, or to them individually, to reinvest the moneys, and to act generally as their agents, respectively, in all matters pertaining to such notes and mortgages, as well as to the notes and mortgages belonging to said Sibley & Bissell individually; that said Michigan Mortgage Company had collected the interest and principal on scores of mortgages for said Sibley & Bissell, and reinvested the money, and that all mortgages taken by said Michigan Mortgage Company similar to the one in question, and sold by it to others, were handled by it as agent of the owners, with full power to collect both principal and interest and receipt for the same, and that said Michigan Mortgage Company had for many years frequently invested money in mortgages for Sibley & Bissell and for their clients,...