Trowbridge v. Ross

• Decision Date: 04 June 1895
• Citation: 63 N.W. 534,105 Mich. 598
• Court: Michigan Supreme Court
• Parties: TROWBRIDGE ET AL. v. ROSS. ROSS v. TROWBRIDGE ET AL.

63 N.W. 534

105 Mich. 598

TROWBRIDGE ET AL. v. ROSS.

ROSS v. TROWBRIDGE ET AL.

Supreme Court of Michigan

June 4, 1895

Appeal from circuit court, Clinton county, in chancery; Sherman B Daboll, Judge.

Bill in chancery by Miles F. Trowbridge and another against Robert D Ross to have a mortgage discharged of record. Defendant filed a cross bill praying for foreclosure, in which the Clinton County Savings Bank was made defendant. From a decree for complainants on the original suit, and a decree dismissing the cross bill, defendants appeal. Reversed.

Perrins & Baldwin, for appellant Clinton County Savings Bank.

William J. Gray, for appellant Ross. Federva & Walbridge, for appellees.

LONG, J.

The original bill was filed in this cause, praying that a certain mortgage given by complainants to Christina Ross, guardian of Robert D. Ross, be declared to be fully paid, and discharged of record, upon the ground that the moneys due thereon had been paid to the Michigan Mortgage Company, Limited, which it is claimed, was authorized to receive such payment for and on behalf of the defendant. To this bill the defendant answered, and filed a cross bill, in which it is claimed that the Michigan Mortgage Company was not authorized to receive such payment, and that such mortgage still remains in force and prays for a decree of foreclosure. The cases were heard together upon pleadings and proofs taken in open court, and a decree entered in the original suit declaring such mortgage fully paid, and discharging the same of record; and on the same day a decree was entered in the cross suit, dismissing said bill, with costs to the defendants. The mortgage was given October 14, 1883, for the sum of $1,200, with interest at 7 1/2 per cent. per annum, payable semiannually, and due in five years. It was not paid at maturity, but complainant Trowbridge continued to pay interest thereon up to February 15, 1890, when there was due and unpaid the sum of $1,200 for principal and $32.50 for interest. On that day complainant Trowbridge arranged with the Clinton County Savings Bank, one of the defendants in the cross bill, to borrow from it $1,200, to pay up the mortgage. He paid into the bank the $32.50 for interest, and gave his note for the $1,200 secured by a mortgage on the same premises, with the understanding that the bank should pay off the Ross mortgage. The bank paid the amount to the Michigan Mortgage Company Limited, upon its agreement to send for and get a discharge of the Ross mortgage. This money was paid on February 15, 1890. The mortgage company used the money in its own business, and no discharge was ever procured. The mortgage company kept the interest on the mortgage paid up, and not until 1894, when the mortgage company failed, did defendant Ross learn that the money had been deposited with it to pay the mortgage. The only question in the case is whether the facts shown upon the hearing establish the agency of the mortgage company to receive for Ross the money for the payment of the mortgage. It appears that the mortgage, after its execution, was forwarded to Gen. L. S. Trowbridge, at Detroit, together with the note, and the abstract of title to the premises mortgaged. As the interest came due each six months, the coupons attached to the note were forwarded to S. S. Walker, or Walker & White, and, after its organization, to the mortgage company, for collection. The interest was collected and forwarded to Gen. Trowbridge, who made the loan for the guardian. The first mortgage taken for Ross was October 15, 1880, due in 1883. When it became due, the mortgage in question was taken as a renewal of the first. This remittance for interest continued up to 1894, when the mortgage company...