Trull v. Hammond
| Decision Date | 13 January 1898 |
| Docket Number | 10,870 - (203) |
| Parties | ALBERT J. TRULL v. ELLSWORTH A. HAMMOND and Others |
| Court | Minnesota Supreme Court |
Appeal by defendants Stener A. Stenerson and Aleck A. Stenerson from a judgment of the district court for Scott county, entered pursuant to the findings and order of Cadwell, J. Affirmed.
Principal and Agent -- Payment of Mortgage to Agent While Securities Are Retained by Principal.
Where a mortgagee, retaining in his own possession the mortgage papers, forwards from time to time the coupon interest notes to a third party for collection, it does not authorize the payment by the mortgagor or his grantee of the premises of the principal sum to such person as agent of the mortgagee he not having the note and mortgage in his possession.
Principal and Agent -- Authority of Agent to Receive Payment.
The rule is elementary that an agent authorized to collect or receive payment of a debt in money cannot bind his principal by collecting or receiving in payment the note, mortgage or property of the debtor.
Principal and Agent -- Findings Sustained by Evidence.
Evidence considered, and held sufficient to justify the findings of the trial court.
C. P Carpenter, E. & W. N. Southworth and Hazen M. Parker, for appellants.
John H. Robertson, for respondent.
This action was commenced to foreclose a mortgage covering a quarter section of land in Scott county, in this state. The answer alleges full payment of the note and mortgage, that plaintiff had executed a written satisfaction thereof, and that the same was duly recorded in the office of the register of deeds in Scott county.
The mortgage bears date May 1, 1886, and was executed by one Ellsworth A. Hammond to the plaintiff, Trull, who then and ever since has resided in the state of Massachusetts. The note which it was given to secure bears the same date, and was payable in five years, with interest at the rate of 8 per cent. per annum, payable semiannually, according to the terms of ten coupon notes attached thereto. The interest was paid only to July 1, 1894, and the court found that there was still due on the note and mortgage, including interest, the sum of $1,228.26.
Prior to the execution of the note and mortgage one Austin F. Kelley owned the land, and he conveyed it to Hammond, who, after giving the mortgage to plaintiff, conveyed it to Stener A. Stenerson and Aleck A. Stenerson, two of these defendants. The mortgage was duly recorded, and contained the usual power of sale in case of default in its conditions. In their answer to the foreclosure action the Stenersons allege that the note and mortgage had been fully paid, and that plaintiff, on June 7, 1892, duly made and delivered a written and printed satisfaction of the mortgage, wherein he acknowledged full payment thereof, and that such satisfaction was duly recorded in the office of the register of deeds of Scott county, in this state, on June 25, 1895. The trial court found as a fact that plaintiff never executed such satisfaction, nor any release or satisfaction of the mortgage, and that the satisfaction referred to in the answer, purporting to be recorded in the office of the register of deeds of Scott county, was never signed by the plaintiff, but that one Austin F. Kelley forged plaintiff's name thereto. And as conclusions of law the court found and decided said satisfaction null and void, and ordered the record thereof canceled. From the judgment entered thereon, the Stenersons appeal to this court.
In our opinion, the findings of the trial court are fully warranted by the facts appearing in the record. The pretended satisfaction is dated May 7, 1892, purports to have been signed by Albert J. Trull, and witnessed by and in the presence of A. F. Kelley and George Hall. The venue is stated as state of Minnesota, county of Hennepin, and acknowledged before Austin F. Kelley, notary public, Hennepin county, Minnesota, who certifies thereto as follows:
On the trial the plaintiff, Trull, testified that he was never in the state of Minnesota until within a day or two before the trial of this action, viz. in March, 1897; that he never saw Kelley until the day of such trial; that he never signed or acknowledged the satisfaction, nor any satisfaction, of this mortgage, nor authorized any one to do so for him; that he did not know George Hall, the witness to the satisfaction, and that he never received payment of any part of the principal sum mentioned in the principal note and mortgage. This evidence was not contradicted. On the trial, Kelley testified as follows:
On the trial neither the defendants nor Kelley produced the original pretended satisfaction, nor any evidence to show that Trull ever authorized its execution. By his own admissions, Kelley as a notary public, certified to a deliberate falsehood in stating that Trull, whom he had never seen personally, appeared before him in Hennepin county and acknowledged full payment and satisfaction of the mortgage, and, apparently, as though this frank admission needed some extenuating coloring, he voluntarily added that he...
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