Chapman v. Benedict

ALLEN, J.

This suit was brought by plaintiff as assignee of the intervener to foreclose a mortgage made by the defendants to one Wm. N. Holway, of date May 1, 1900, to secure a promissory note for the sum of $3,000. Judgment was rendered for the intervener, from which the plaintiff appeals.

The note and mortgage were assigned by Holway to the intervener to secure his promissory note to her for the sum of $2,400 and were assigned with Holway’s note to the plaintiff by the intervener as collateral security for her note to the plaintiff of date, May 20, 1901, for the sum of $1,500, with interest at the rate of eight per cent, etc. These facts are alleged in the complaint in intervention, and it is further alleged: That this complainant paid the interest due on her personal note August 20, 1901; that thereafter three times she offered to Charles Lantz the money due on her personal note and demanded the reassignment of said securities; and that Charles Lantz has ever since refused to accept the money, claiming a fee not rightly belonging to him. Then there is a copy of a receipt given for the interest paid, which shows it to have been paid August 19, 1901. There were other facts alleged touching the intervener’s right to make the assignment, but in view of the proceedings on the trial and the findings of the court, these allegations may be regarded as

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immaterial. The complaint in intervention is duly verified, and its allegations are not specifically denied.

The execution of the note and mortgage in suit and its assignment, together with the execution of Holway’s note to Mrs. Stull, and of her note to the plaintiff, are admitted.

But it is found: (1) That Mrs. Stull did not assign to plaintiff the $2,400 note of Holway, for which she held the note and mortgage in suit as collateral, of which fact the plaintiff had notice; that she had no right to transfer the latter without also transferring the $2,400 note; and (2) that said intervener, Gertrude Stull, paid to the said plaintiff the interest due on her said note to the twentieth day of August, 1901; that on said twentieth day of August, 1901, the said Gertrude Stull offered to pay Chas. Lantz her said note in full, including all amounts due thereon to date of said offer and demanded of plaintiff a return of the said securities held by him; that said plaintiff by his attorney in fact, Charles Lantz, then refused and has ever since refused to accept said payment, assigning no reason for such refusal save that the amount tendered by said Gertrude Stull did not include an additional sum of $125 claimed to be due from said Gertrude Stull to the said plaintiff’s attorney for services rendered in a prior action to foreclose said $2,000 Benedict mortgage.