97 N.W. 551 | N.D. | 1903
Plaintiff’s action is to foreclose a mortgage upon real estate in Barnes county, N. D., and for general relief. His ownership of the note and mortgage is through a written assignment of- them made by Thomas Persons, the payee and mortgagee named in the instruments. The mortgagors, Charles G. Smith and Mary L. Smith, answered, alleging that the note and mortgage had been fully paid and satisfied prior to the commencement of the action. Phineas P. Persons, also a defendant, answered separately, alleging that the note and mortgage in suit were fully paid and satis
“That on the said 23d day of January, 1897, and some time prior thereto, the said Thomas Persons, being the father of plaintiff and this defendant, was seriously ill in the town of Alma, in the state of Washington, with the expectation of living but a very short 'time, and, desiring that the expenses of his said sickness and last sickness, and, in case of his death, the expenses of his funeral, and the cost of removing his remains to the state of Minnesota, and also the necessary expenses of taking Maria Persons, the aged wife of said Thomas Persons, and the mother of this plaintiff and this defendant, from said state of Washington to the state of Minnesota, and also the expenses of the plaintiff and this defendant in traveling to and from said state of Washington to said state of Minnesota, be paid out of the property of the estate of said Thomas Persons, then and there, on said 23d day of January, A. D. 1897, in the presence of this plaintiff and this defendant, and agreeable to the same, set aside, composed, and constituted the balance of said mortgage, and the net proceeds of the same, as part of a fund or means to pay all said expenses and costs, and, in order to aid in, and more effectually carry out, the intention, purpose and understanding of said Thomas Persons with reference to the said fund, said Thomas Persons assigned his interests in the balance of the said mortgage, and the net proceeds of the same, without any consideration whatsoever, to this plaintiff, upon the express condition and understanding, however, that the said assignment should not be delivered or take effect until after the death of the said Thomas Persons, and upon the death of the said Thomas Persons, the said Simon E. Persons, this plaintiff, should have charge and control of the balance of the said mortgage, and the net proceeds of the same, as a part of the trust fund to pay the expenses and matters herein above mentioned.”
By counterclaim, defendant sought to recover from the plaintiff certain expenditures alleged to have been made pursuant to the instructions of plaintiff’s assignor. The counterclaim was denied by plaintiff. The case was tried to the court without a jury, pursuant to section 5630, Rev. Codes 1899, and resulted in a judgment dismissing the case as against the defendants Smith, and in a money judgment against the defendant Phineas P. Persons for the amount
Thomas Persons, the father of the parties to this appeal, in expectation of immediate death, made the assignment in question to his son Simon Persons, the plaintiff, on the 23d day of January, 1897, at Alma, in the state of Washington. It was in the form of a bill of sale, and described the property as a “real estate mortgage given by H. E. Keene and wife, of Barnes county, North Dakota; also one given by Charles G. Smith and wife. All of said mortgages are recorded in the county of Barnes, Town of Valley City, North Dakota.” This instrument was duly signed by Thomas Persons and by Maria Persons, his wife, in the presence of subscribing witnesses, and duly acknowledged, and subsequently, on March 1, 1897, delivered by the defendant upon the express instructions of Thomas Persons. This assignment was sufficient, both in law and in fact, to transfer the ownership of the mortgage in suit, and the note secured thereby, as against the objections of defendant. The fact of the assignment is admitted by the pleadings, and its legal sufficiency has been determined beyond question, so far as these parties are •concerned. Persons v. Persons, 105 Fed. 39, 44 C. C. A. 348. The real point in issue is whether or not this assignment was burdened with a trust. If not burdened with the. trust claimed by the defendant, the plaintiff is entitled to- a judgment free from all alleged counterclaims, for the reason that the sums .attempted to be counterclaimed by defendant are for services and advances alleged to have been made by defendant for and at the request of Thomas Persons, to be reimbursed out of the fund realized from the Keene and Smith mortgages. The items counterclaimed were litigated in an action between these parties in the United States Circuit Court for Minnesota, in which action Simon Persons sued to recover from his brother Phineas the amount of the Keene mortgage, transferred by the same instrument of assignment as the mortgage here in question. In that case Phineas pleaded the same defenses, and the same items of alleged expenditures as counterclaims, that he sets forth in this action. The issues were there determined against him, and judgment awarded against him in favor of the plaintiff for the value of the Keene note. This judgment was affirmed on appeal, and the judgment was paid by defendant. These matters of counterclaim cannot again be litigated.
For an understanding of the case, a review of the circumstances leading up to and accompanying the assignment is necessary. Thomas Persons resided at Valley City, N. D., for six years prior h> October 18, 1892. He was a man of considerable means, and loaned his money upon real estate security. His son Phineas, the appellant, also resided at Valley City, and assisted his father in the making' of loans and the collection of interest; and, during the six years of his father’s residence there, Phineas handled for him a business aggregating from forty to fifty thousand dollars. The loan to Charles. G. Smith in November, 1892, was made, and the note and mortgage in suit taken, by Phineas Persons, for, and in the name' of his father, Thomas Persons. From October, 1892, until March 1, 1897, Thomas Persons resided at Alma, in the state of Washington, and during this time Phineas continued to transact business for his father in the making of collections and remittances-upon unclosed business in North Dakota. He did this under a general power of attorney executed and delivered to him by Thomas Persons and wife on the 28th day of October, 1892. At the time of the making of the assignment herein mentioned, the note and. mortgage, the subject thereof, were, and at all times had been, in the physical custody and possession of Phineas Persons. On January 23, 1897, Thomas Persons, then 83 years of age, was sick, and believed himself about to die. His sons Simon and Phineas were summoned to his bedside. Phineas arrived first, and was consulted by his father as to the disposition of his estate. He was advised by Phineas to transfer his property directly to the beneficiaries, and thus save the cost of probating the same in the four states in which it was situated. Phineas, in these preliminary talks, doubtless mentioned the Keene and Smith notes, and suggested that he be permitted to use them. It is upon this conversation, on the morning of January 23d, that he bases his claim that these notes were made a special trust for his benefit. In answer to questions hy his counsel, Phineas testified: “Q. What was said, if anything, by your father, relative to the Keene and Smith notes, and when? A. He said during the conversation that occurred before he went for Mr. Wake-field— He said he didn’t want to make the papers to myself; he
It will be observed that, under the averments of his answer, the only expenses which Thomas Persons desired to have paid from these notes were the expenses of his then and last sickness, and, in case of his death, the expenses of his funeral, the costs of removing his remains to the state of Minnesota, and also the necessary expenses of taking Maria Persons from Washington to Minnesota, and the expenses of plaintiff and defendant to Washington and
The evidence clearly establishes that the mortgage this action was brought to foreclose was released without the knowledge or consent of either Thomas Persons or the plaintiff. Defendant had been at Afton and in daily contact with his brother and father from the time the assignment was made, without mentioning to them any of his prior or subsequent acts concerning these securities, but took advantage of their confidence, and of the fact that the note and mortgage were in his possession, that the assignment to Simon was unrecorded, and that the power of attorney given him in 1892 was of record, and unrevoked in writing. He secured a settlement with the mortgagors, took a deed of the land to himself, and surrendered the note and mortgage in suit to the makers, and then resold the land. His actions show a systematic endeavor to secure to himself the entire of his father’s estate, much of it by dishonest means. The Keene note and mortgage, transferred to his brother in the same instrument as the one in suit, was released and its proceeds appropriated by him in the same way. The $10,500 certificate of deposit of his mother was likewise compromised by him under the ostensible authority of his power of attorney, without her knowledge or consent, and the proceeds appropriated to his own use, and his aged mother left to die a dependent upon the generosity of the plaintiff.
The judgment of the trial court is amply and fully sustained by the evidence. Defendant is indebted to plaintiff for the full amount of the mortgage debt, with interests and costs. The judgment appealed from is in all things affirmed.