Klokke Investment Co. v. Lissner

SHAW, J.

This is an appeal by all the defendants except one, R. Lewis, from a judgment against the defendants for the foreclosure of a mortgage executed by the defendants Meyer Lissner and Ermine Lissner, his wife, on January 2, 1915, for the sum of eighty-five thousand dollars, with interest. The mortgage was made to Johanna E. Klokke, executrix of the estate of Ernst F. C. Klokke, and was by her duly assigned to the plaintiff.

The only answer embraced in the record on appeal is that of Louis M. Lissner. The other answers were omitted upon a stipulation of all parties that the allegations of that answer present all the facts material to the defense of the other defendants.

The defense set up in said answer is that the mortgage and note sued on were given without any consideration. The facts upon which this defense rests are alleged to be as follows: On June 2, 1912, one C. B. Toungken and W. E. MeVay executed to Ernst F. C. Klokke a note for eighty-five thousand dollars and a mortgage to secure the same on the property described in the complaint, due January 2, 1915. In the year 1914 Klokke died and Johanna E. Klokke was duly appointed executrix of his estate and she qualified as such executrix. After the said Toungken and MeVay mortgage became due, Meyer Lissner and wife executed to Johanna E. Klokke, as executrix as aforesaid, the note and mortgage in suit, in consideration of the release and cancellation by said executrix of the said note and mortgage given by Toungken and MeVay, as aforesaid. This, of course, was on its face an adequate and sufficient consideration for the note and mortgage of Lissner, if the release and cancellation of the previous note and mortgage were valid and effectual. The answer further avers that said executrix was not, by the will of Ernst F. C. Klokke, empowered to release said mortgage; that .she never obtained any order of the court in probate empowering her, as executrix or otherwise, to release or cancel said mortgage; that she afterward rendered her final account as executrix of the

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estate, in which she returned the Youngken and McVay note and mortgage as part of the assets of said estate; that the account was settled accordingly; that a decree of distribution of the estate was thereafter duly made, whereby said Youngken and McVay note and mortgage were distribnted to her as legatee under said will; that said Youngken and McVay note and mortgage were never actually delivered up, surrendered, or canceled; that said Johanna E. Klokke is still the owner and holder thereof; that she elected to and did retain the same and repudiated the said note and mortgage of Lissner and wife sued on herein, and that the prior mortgage of Youngken and McVay still remains a lien on the property in favor of said Johanna E. Klokke, to the prejudice of said defendant.