77 N.W. 285 | N.D. | 1898
Action by Fredrick Stolzman to quiet title in himself to a certain tract of land in Cass County. Plaintiff claims ownership by purchase from one William Schultz on or about March 15, 1892, and alleges that the defendants claim an estate or interest in said land adverse to the plaintiff, and asks that they be required to disclose the nature of their interest. Henry Wyman was sued as receiver of the Globe Investment Company. He makes no appearance. The defendant Benjamin Gathercole answered in denial, and also by wa.y of counterclaim, wherein he alleged that William Schultz, plaintiff’s grantor, on the 15th day of July, 1889, executed and delivered to the Globe Investment Company his promissory note, with coupon interest notes attached, for the sum of $1,300, with interest at the rate of 7 per cent, per annum, payable semi-annually, with a further provision that in case said note was ribt paid at maturity the interest then remaining unpaid should draw interest at the rate of 12 per cent, per annum (both principal and interest being payable at the office of the Globe Investment Company, in Boston, Mass.) ; that, to secure the payment of said note and interest, the said Schultz executed and delivered to said Globe Investment Company a mortgage upon the land here in controversy, which said mortgage was duly recorded in the proper county; that the defendant Gathercole on or about July 30, 1889,, duly purchased said note and mortgage from said investment company, paying therefor the full face value thereof, and the said note was duly indorsed by said investment company and delivered to said defendant, and said mortgage was, duly assigned and delivered to defendant, but said assignment was never recorded in the county where the land is situated; that said' defendant is now the owner and holder of said note and mortgage, and that the principal sum of said note, with interest as therein provided, since the maturity thereof, is due and entirely unpaid; further, that when plaintiff purchased said land from said Schultz
We have stated the facts thus at length in order to show that this case, in its every phase, is covered by the decision of this Court in Hollinshead v. John Stuart & Co., 8 N. D. 35, 77 N. W. Rep. 89. In that case we took occasion to enter at some length into the investigation of the question of equitable estoppel in pais. We at first reached a conclusion sustaining an estoppel, under the facts. But upon a rehearing, and upon further argument, and a more careful and extended examination, we reversed our first determination, and held that the facts did not constitute an estoppel. The facts in that case were in all material parts identical with the facts in the case at bar. That decision must control this case. Plaintiff did not make payments to the investment company as the agent or ostensible agent of any party. He paid to it, blindly believing that it was the owner of a negotiable note which he knew was liable to pass from its hands at any moment. He paid without inquiring as to the ownership or possession of the note. The result of his lack