Spitler v. Kaeding

VAN DYKE, J.

This action was brought to foreclose a mortgage, dated January 30, 1897, made by the defendant Kaeding to the plaintiff, Spitler, and defendant Kate S. Williams, to secure the payment of a promissory note of even date for the • sum of two thousand five hundred dollars. The note was made payable to said Spitler and Kate S. Williams, and the mortgage to secure the same recites that “ the interest of said Kate S. Williams in the aforesaid not.e and mortgage is fifteen hundred dollars, and the interest of said William Spitler is one thousand dollars.” The fifteen hundred dollars belonged to appellant, J. W. Casebeer, and the one thousand dollars belonged to plaintiff, Spitler, and they two united in loaning said money, to secure which the note and mortgage were given, and it was by direction of appellant, Casebeer, that the note and mortgage, as to the amount loaned by him, were made payable to said Kate S. Williams, who is his daughter. In his answer, appellant, Casebeer, states that he did not give the said fifteen hundred dollars to Kate S. Williams, nor his interest in the said note and mortgage; that the only purpose of having said note and mortgage made in the name of said Kate S. Williams was to apparently invest her with the ownership of the three-fifths interest therein, in order to give her some financial standing, and that said Kate S. Williams at the time promised and agreed that whenever he should desire she would assign to him the said three-fifths interest in said note and mortgage. On the other hand, the respondent Kate S. Williams in her answer and cross-complaint alleges that the note and mortgage, as to the three-fifths interest, were made and executed to her by the direction of appellant, her father, for the purpose of making the said fifteen hundred dollars as a gift to her, and the same was then and there given to her by the said appellant, and she denies that she ever promised to assign the said note and mortgage when requested. The court finds: “That said J. W. Casebeer did give said sum of fifteen hundred dollars to said Kate S. Williams, and did give her said note and mortgage; that it was not the only purpose, nor any purpose, of having said promissory note and mortgage in the name of said Kate S. Williams to apparently invest her with

[502]

the ownership of the three-fifths interest in said note and mortgage, in order to give her some or any financial standing; that said note and mortgage were not made in her name for the purpose of apparently, or otherwise, giving her some financial or any financial standing; that she did not, immediately before the execution of said note and mortgage, or any time, or at all, promise and agree, or promise or agree, with the said J. W. Casebeer, that she would, whenever he should desire, or at all, assign said three-fifths interest in said note and mortgage, or in said note or in said mortgage, to him.” The appeal is taken from an order denying defendant Casebeer’s motion for a new trial.