Wilson v. La Tour
| Decision Date | 11 March 1896 |
| Court | Michigan Supreme Court |
| Parties | WILSON v. LA TOUR. |
Appeal from circuit court, Otsego county; Nelson Sharpe, Judge.
Bill by Otis B. Wilson against Elizabeth A. La Tour to compel the cancellation of record of a certain mortgage. From the judgment rendered, defendant appeals. Affirmed.
Fedewa & Walbridge, for appellant.
Lyon & Dooling, for appellee.
Complainant has owned and resided upon a farm situated in Otsego county for the last 14 years. August 26, 1886, he executed and delivered to Walker & White, a firm engaged in the loaning business at St. Johns, Mich., his note of $350, due October 1, 1891, with interest; both principal and interest payable at their office in St. Johns. The interest was represented by 10 coupons, of $12.25 each, and accompanying them were 10 other (commission) coupons, of $1.75 each. due at the same times. To secure the payment of the note, complainant gave a mortgage on his farm, the mortgage being duly recorded in Otsego county. Walker & White assigned the mortgage and note to Jeanette L. Tefft on November 29, 1886, by written assignment duly recorded in Otsego county. Mrs. Tefft died before receiving any interest on the mortgage, and her executors assigned the note and mortgage to defendant, who resided in Buffalo, N. Y., April 22, 1887, and said assignment was duly recorded in Otsego county. Walker & White notified complainant, from time to time, of the maturity of his interest, collected and remitted it to defendant, and sent complainant his canceled interest coupons. In September 1889, they were succeeded in business by the Michigan Mortgage Company, Limited, of which company they were the leading officers, and had charge of its affairs. From that time the mortgage company held substantially the same relations towards both parties that Walker & White had held. Complainant had no notice of the transfer of the note and mortgage, except that he knew that Walker & White were succeeded by the mortgage company, and always supposed they or the company still owned them. On March 22, 1893, he sent the company a draft of $364.10, which covered the principal of $350; interest to April 1, 1893, $12.25; exchange, 10 cents; and commission, $1.75. The company acknowledged the receipt of the money in full payment of the mortgage, and advised complainant they had sent for the discharge thereof, and, as soon as received, would forward it to him. The mortgage company placed the principal sum of $350 to the credit of defendant on its books, and on the same day notified defendant of the payment of the money, sending her a discharge of the mortgage to execute and return with the canceled papers pertaining to the Wilson loan, and advised her that upon the receipt of the same they would remit. For some reason defendant failed to send the discharge of the canceled papers, or to reply to the company's letter. The mortgage company failed on February 6, 1894, and receivers were appointed. In the following April, complainant first learned that defendant claimed to own the mortgage in question, and filed his bill to cancel the note and discharge the mortgage and assignments from record, claiming that the payment made to the mortgage company was a payment of the mortgage debt. The defendant appeared, and insisted that the mortgage company had no authority from her to receive payment of the mortgage, and claimed the mortgage to be a subsisting lien upon the land. the circuit judge made a decree in accordance with the prayer of the complainant, and defendant appeals.
All of the business was done by correspondence. There were originally 16 mortgages running to Walker & White, which were assigned to Jeanette L. Tefft, and, upon whose death, became the property of defendant. The amount of the mortgages was $11,900. The record shows that soon after the defendant became the owner of these mortgages, she applied to Walker & White to collect the interest as rapidly as it matured, and that either Walker & White, or the Michigan Mortgage Company, as their successor, collected all of the interest that accrued upon these mortgages up to the time of the failure of the company. The total amount of interest collected and remitted during this time was $3,836.97, of which Walker & White collected and remitted $1,986.44, and the Michigan Mortgage Company collected and remitted $1,850.53. The record also shows that, of the principal of the mortgages, Walker & White collected and remitted to defendant $650, and that the Michigan Mortgage Company collected and remitted to defendant principal of mortgages to the amount of $9,650. In addition the company collected the principal of the mortgage in question, $350, making a total of $10,650 collected. A large amount of correspondence was received in evidence between the defendant and Walker & White and the Michigan Mortgage Company in relation to their conduct of the business of Miss La Tour, in which she urges them to collect the mortgages of which we have before spoken. This correspondence indicates very clearly that her request was acceded to; that Walker & White, and afterwards the Michigan Mortgage Company, did receive payments of these mortgages when the mortgages and notes were in the hands of Miss La Tour, and upon their request she forwarded the notes and mortgages to them, with the necessary discharge papers, showing that she had knowledge of their method of doing business, and approved of it. In August, 1891, she asked the mortgage company to notify a number of the mortgagees that their mortgages would soon be due, and, among others, the mortgage of Otis B. Wilson, for $350, in October. In September she requested a report on the Wilson mortgage. In October, 1891, she wrote the company, calling attention to the fact that she had over $3,800 due her for interest and principal on the mortgages, called their attention to the Wilson mortgage, and added: Replying...
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