189 P. 225 | Mont. | 1920
delivered the opinion of the court.
The complaint in this ease alleges that on the twenty-seventh day of June, 1917, the plaintiff, being indebted to defendant
The answer of the defendant Granite-Alaska Company admits the delivery and execution of the mortgage to it and the delivery of the assignment to the Daly Bank & Trust Company as alleged in the complaint. The answer further denies generally each and every allegation in the complaint except as otherwise admitted. For a separate and affirmative defense, said defendant alleges the execution of the mortgage referred to in plaintiff’s complaint; that said mortgage was given by plaintiff to secure the payment of a certain promissory note of the Noyes Estate to the Granite-Alaska Company, defendant herein, for the sum of $25,000 and interest thereon at the rate of eight per cent per annum from the twenty-seventh day of June, 1917, until paid, and, further, for the purpose of secur
It is further alleged that at the time of the execution of said mortgage plaintiff was indebted to the Penn Mutual Insurance Company of Philadelphia upon a certain promissory note in the sum of $150,000, and that the plaintiff was at said time failing to make the payments on said obligation as required by the terms thereof, and that at the time of the execution of the said mortgage T. J. Murray was the president and owner of all the capital stock of the Granite-Alaska Company except two shares thereof; that the plaintiff and its officers knew that said Murray was the president of said defendant corporation and the owner of such stock; and that the plaintiff and its officers knew that the said Murray, for the purpose of securing the aforesaid loan from the Penn Mutual Insurance Company, had extended his personal credit to said corporation by joining in the execution of the said promissory note to the said Penn Mutual Insurance Company and had become personally liable upon said obligation. It is further alleged that it was mutually understood and agreed by and between the plaintiff and this defendant and said Murray that the mortgage hereinbefore referred to was made and executed and should stand as security to said defendant and to said Murray for the payment of the obligation incurred in the execution of the aforesaid note, and that
To the answer of the defendant Granite-Alaska Company the plaintiff demurred upon the ground that the same fails to state-facts sufficient to constitute a defense or counterclaim. The demurrer was sustained, and the defendant Granite-Alaska Company failed to further plead. Judgment was thereupon entered in favor of the plaintiff in accordance with the prayer of the complaint. From that judgment this appeal was taken.
The only real point in controversy is whether the answer of’ the Granite-Alaska Company sets forth sufficient facts to permit of proof that the real consideration for the mortgage was as alleged therein.
In Hall v. Tay, 131 Mass. 192, it appeared that Tay and wife-executed a mortgage upon lands belonging to the wife to Hall,, who was a member of a firm engaged in selling coal, for the-purpose of obtaining coal from Hall’s firm-. Thereupon the-firm of which Hall was a member sold to Tay three cargoes of’ coal. He failed to pay for the same, and in an action instituted by Hall upon the mortgage it was contended that, the mortgage being to Hall individually, he could not show by
“We can see no reason why, in the absence of any specific statement in the mortgage as to the character of the advances, parol evidence may not be introduced to identify and prove what advances were in fact intended by the parties. It is competent for the purpose of showing the actual consideration. There certainly would be no objection to it if the mortgage had been made in the same terms to the firm by name. And if made to one of the firm for the benefit of the firm, and,-.in con
In Johnson v. Bratton, 112 Mich. 319, 70 N. W. 1021, the court said: “The general rule is that you cannot import into a •written.agreement a parol agreement which alters the terms or legal effect of the written agreement. * * * An exception to this rule, however, is made in relation to mortgages (17 Am. & Eng. Ency. Law, 454), and parol evidence is admissible to identify the future advances intended to be secured by a mortgage. Though the mortgage, on its face, is for the payment of a specific sum of money, parol evidence is admissible to show that it was really intended to secure future advances made irom time to time. * * * We think it was not error to allow parol proof of what the facts were about the giving of the mortgage, what debt it was to secure, and for whose benefit it was made.”
In the foregoing ease the mortgage was on its face in favor ;of an individual to secure a promissory note for $1,500, whereas the intent of the parties was that the mortgage should be security.-to. a firm, of which the person named as mortgagee
As illustrative of the foregoing doctrine, see the following authorities: Jones on Mortgages, 7th ed., secs. 170, 367a, 846; Price v. Brown, 98 N. Y. 388; Lawrenceville Cement Co. v. Parker, 60 Hun, 586, 15 N. Y. Supp. 577; Banta v. Wise, 135 Cal. 277, 67 Pac. 129; Anglo-Californian Bank v. Cerf, 147 Cal. 384, 81 Pac. 1077; Wilkerson v. Tillman, 66 Ala. 532.
We are of opinion that, ifo the facts are as pleaded by the Granite-Alaska Company, the defendant for its own protection had the right to refuse to satisfy the mortgage until Murray had been released from the indebtedness to the Penn Mutual Insurance Company, and that the answer sufficiently pleaded the defense in that regard; also, it would be competent for the defendant upon a trial to introduce parol testimony to establish the allegations of the answer, if such testimony exists:;.
The judgment is reversed.
Reversed.