Verdine v. Olney
| Citation | 77 Mich. 310,43 N.W. 975 |
| Court | Michigan Supreme Court |
| Decision Date | 01 November 1889 |
| Parties | VERDINE v. OLNEY ET AL. OLNEY v. POST ET AL. |
Appeal from circuit court, Barry county; FRANK A. HOOKER, Judge.
Bill by John Verdine against Francis E. Olney and Abram A. Post Charles B. Post, and Frank J. Post, as administrators of the estate of Abram A. Post, deceased, to restrain the foreclosure of a mortgage and other relief. Answer with a cross-bill was made by Olney, and a supplemental bill filed by him against John Verdine, Abram A. Post, and Abram A. Charles B., and Frank J. Post as administrators. By stipulation the two cases were heard together. Decree for complainants. Defendants Post appeal. MORSE, J.
This controversy concerns the payment and discharge of a real-estate mortgage. June 1, 1877, Jared C. Thompson, then the owner of the E. 1/2 of N.W. 1/4 of section 23, in the township of Barry, Barry county, in this state, borrowed $800 of Abram A. Post, of Penn Yan, N. Y., securing the same with a bond and mortgage, which were dated of that date, but the mortgage was not acknowledged until June 15, 1877. There were two Abram A. Posts living at this time, father and son, who are known in the record as Abram A. Post, Sr., and Abram A Post, Jr. Some time in 1878 Jared Thompson sold the land to John Thompson. February 27, 1879, John Thompson conveyed the same premises to Francis E. Olney, who deeded to John Verdine on the 13th day of December, 1882. In the month of January 1886, Abram A. Post, claiming to be the owner of the mortgage, commenced a statutory foreclosure of the same in Barry county, and stated in the notice of sale that there was due on the mortgage January 21, 1886, the sum of $836.81. February 17, 1886, Verdine, the complainant in the first cause, filed his bill of complaint in the circuit court for the county of Barry, in chancery, to restrain the proceedings to foreclose such mortgage, averring that one Anderson, residing in the city of Jackson, Mich., was the agent of said Post in Michigan, and authorized to make loans for him, and to collect and receive moneys due and payable upon the mortgages and other securities taken to secure said loans, and that Olney, of whom Verdine purchased the premises, claimed to have paid the mortgage on this land in full. Verdine therefore prayed that an account might be taken as to the money actually due upon the mortgage, if any, to said Abram A. Post, and if any was found due that he might be permitted to redeem the land, and apply the amount of such redemption money upon a purchase-money mortgage held by said Olney against him, and on said premises. To this bill Abram A. Post answered, denying any authority in Anderson to collect either the interest or principal upon said mortgage, and averring that if Olney or any one else made payments to Anderson, they were not authorized by him, and that there was due the said sum of $836.81, as stated in his notice of sale on statutory foreclosure. Olney also answered. He averred his purchase of John Thompson, and admitted, on information and belief, that George F. Anderson was authorized to receive the payments made on the mortgage, and claimed that he and Thompson together had fully paid and discharged the mortgage, and that he held the receipts and vouchers therefor. Defendant Olney further answered, claiming the benefits of a cross-bill under the rules. He set out the conveyance from Jared Thompson and wife to John Thompson, and from the latter to him, both conveyances being subject to the unpaid balance of said mortgage to Post. He alleged, on information and belief, the agency of Anderson, and that he was the duly constituted attorney of Post as to the collection of this mortgage; and that from the entire period of the giving of said mortgage until after the 20th day of December, 1880, the said George F. Anderson, with the consent and acquiesence of Abram A. Post, collected and received, as his agent and attorney, the installments of interest as they matured, as also a portion of the principal of said mortgage. He set forth the payments made by himself to Anderson, and further averred the payment to said Post by a New York draft, duly transmitted to him at Penn Yan, of the sum of $381.47, on the 1st day of June, 1882, which was then sufficient to pay and satisfy in full the said mortgage, and all that was due or to become due upon the same, both of principal and interest. He asked as relief that the court should determine the amount actually paid by him and Thompson; that Anderson was authorized as agent of Post to receive the same; that the payments made to Anderson be applied upon said mortgage, and the same decreed to be fully paid and satisfied, and ordered to be discharged of record.
Issue was joined in the cause, and hearing begun in open court at the February term in 1887, when it became known to the court for the first time that Abram A. Post, Sr., died in the month of June, 1886. An order was afterwards made reviving the suit. Then the administrators of Post filed their answer. Previous to this there was nothing in any of the pleadings to show whether Post, Sr., or Post, Jr., owned the mortgage or commenced the foreclosure; the name "Abram A. Post," without further designation, being used in all the proceedings. November 14, 1887, Olney filed a supplemental bill, in the nature of a bill of revivor, against Abram A. Post, the son, individually, and the administrators of Abram A. Post, the father. In this bill Olney alleged that Abram A. Post, the son, had held himself out as the owner of the mortgage until the death of his father, and that the payments were made in the full belief that the son, and not the father, was the mortgagee, and that nothing was ever known to the contrary until the partial hearing of the first cause in February, 1887, when the son testified that he was not the owner of the mortgage, and that the same had always belonged to his father, and that his father was dead. The bill, in other respects, made the same case in fuller detail as made in the answer of Olney in the first case. The defendants Post's administrators filed a plea, setting up the first cause as a bar to the new suit, coupled with a disclaimer on the part of the living Abram A. Post. By stipulation the two causes were heard together. The chief issues in dispute were: First. Who owned the mortgage, the father or the son? Second. The amount of the payments made to Anderson. Third. Was he authorized to receive them as the agent of Post? A jury was demanded and ordered, and it was stipulated that the jury should "try the issues joined in both cases together, and that said verdict stand as a verdict in each cause." Testimony was then taken in open court, in the presence of the court and jury, and submitted by the court in a charge to them, in which they were required to answer three questions as follows: This verdict was rendered November 24, 1888. On the 27th of the same month Judge Hooker made a decree confirming the findings and verdict of the jury, and declared in said decree that the said mortgage was fully paid, satisfied, and discharged, and gave Olney his costs against the defendants Post, who appeal to this court. Verdine also, in effect, had his costs decreed from the Posts.
The only material question at issue was the authority of Anderson to receive the payment made upon the mortgage. Enough money was paid to Post and to Anderson to discharge the mortgage beyond all question. Whether Abram A. Post, Sr., or Abram A Post, Jr., owned the mortgage was not material, except as bearing on the question of Anderson's agency. It is admitted by Abram A. Post, the son, that he managed the loans for his father in Michigan, and that while in Michigan he signed his name as "Abram A. Post." He used the "Jr." only in New York. There can be no doubt upon this record that the Thompsons and Olney supposed that the son was the owner of this mortgage...
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