49 Neb. 639 | Neb. | 1896
This action was commenced in the district court of Webster county by Mary O. Richards against John Waller and others to foreclose a mortgage on a quarter section of land situate in Webster county. One of the defendants, L. 0. Gilbert, who had purchased the land of Waller after the execution of the mortgage in suit, answered as a defense the payment of the amount secured by the mortgage and his consequent right to its cancellation. As a result of a trial in the district court the answering defendant was awarded a favorable decree', from which the plaintiff appealed to this court.
It appears that on October 20, 1885, John Waller, then owner of the quarter section of land involved in this suit, obtained a loan of $300 from one James H. Tallman, through the agency of the Nebraska & Kansas Farm Loan Company, doing business at Red Cloud, this state, and evidencing the indebtedness thus created, executed and delivered a promissory note or bond for the principal sum of $300, due October 1, 1890, and the ten interest coupons thereto attached, providing for the payment of the interest on the principal sum semi-annually during the expressed life of the loan. All the instruments mentioned were by their terms payable at the Mechanics Savings Bank, Hartford, Connecticut, and to secure the payment of the bond and its accompanying coupons the mortgage in suit was duly executed and delivered. It was also stated in the mortgage that -the payments of the moneys which it was given to secure were to be made at the bank designated, as we have hereinbefore set forth. The payee named in the instruments was James H. Tallman, who resided in Hartford, Connecticut, to whom they were immediately forwarded and by whom they were, a very few days after he received them, sold and assigned to the plaintiff in this suit; and we will state here that the assignment of the mortgage
There was evidence introduced on the part of the defense, some of it incompetent, but such as was competent, tended to show the general course of dealing in respect to loans by and between the eastern, or Hartford firm, and the western loan company; that interest on loans which had been made through it by the eastern firm was collected by the Nebraska & Kansas Farm Loan Company and forwarded to the firm at Hartford; and, when necessary, or probably in all cases prior to the time the
There was no evidence which it can be claimed tended to prove that either the Hartford firm or the western company had any authority to collect the amount of the principal of this loan at the time it was received by the loan company. “Authority of an agent to receive interest * * * on a mortgage * * * does not afford ground for inferring authority to collect the principal, where the agent is not entrusted with the possession of the securities.” (Jones, Mortgages, sec. 964, and cases cited.) The defendant stated that he received notices from the western company in regard to interest installments, but does not say that he was notified by it to pay the principal when due, but that he, apparently of his own motion, procured a draft for the amount of the principal of the loan, at or about the time it was to be paid, and sent it to the secretary of the Nebraska & Kansas Farm Loan Company, and afterwards received from him a letter in which the receipt of the draft was acknowledged, and it was stated that the release of the mortgage would be sent to him (Gilbert, the defendant) as soon as received from the east. In the opinion in the case of Bull v. Mitchell, supra, which case, in its facts, was somewhat similar to the one at bar, differing only in some details unimportant or not controlling in their character, it was announced: “Where payment of a negotiable note secured by mortgage was made to an investment company of which the mortgagee was manager, and such payment was never forwarded to the party to whom such note had been transferred, held, that the mere fact that antecedent payments made in like manner had been made to be forwarded to the transferee of such note, and had been so forwarded, did not bind the holder of the note as to the final payment not forwarded, it being shown by the evi
The cases
Judgment accordingly.
Security Co. v. Richardson, 33 Fed. Rep., 16; Security Co. v. Christy, 33 Fed. Rep., 22; Kent v. Congdon, 33 Fed. Rep., 228.