Cornell v. Corbin

Myrick, J. This is an action to foreclose a mortgage alleged to be held by the plaintiff, assignee of George P. Cornell, for twenty-five thousand dollars, to whom the notes and mortgages were executed by the defendants Corbin and Handy. The date of the assignment to plaintiff as stated in the complaint is a day subsequent to the maturity of the notes. The complaint alleges that the defendant corporation has some interest in the mortgaged premises subject to the mortgage. During the pendency of the proceedings the complaint was amended by stipulation, by striking out the name of the defendant Corbin in the prayer that judgment for deficiency be docketed.

The defendants Corbin and the Indian Valley Mining Company answered, denying the assignment to plaintiff and that she is or ever was the owner of the notes or mortgage. For a further defense, and by way of set-off, the same defendants, in their answer, averred in substance, among other matters, the following : George P. Cornell, being the owner of the undivided one half of a mine, undertook to obtain title to the other undivided one half, and to convey the mine to Handy and Corbin upon the payment to him by them of one hundred thousand dollars, he (Cornell) to have a certain amount of the stock of a corporation to be'thereafter organized. The agreement as to the payment was subsequently modified so as to make the payment to be, money fifty thousand dollars, and fifty thousand dollars by notes and mortgage. (The two notes in suit are for the last [199]twenty-five thousand dollars, the first note for twenty-five thousand dollars having been paid.) The answer contains averments of specific acts of fraud on the part of Cornell and Handy, by and through which Corbin was induced to join in the purchase and to pay two thirds of the first payment of fifty thousand dollars, and to expend fifty thousand dollars in the working of the mine. It is averred that it was agreed, as parts of the transaction, that Handy and Corbin should proceed to the Eastern States and procure a corporation to be organized, and that the mine should be conveyed by Corbin and Handy to such corporation, and each of the parties, Cornell, Corbin, and Handy to have named proportions of the shares of the stock. In pursuance of this arrangement, the defendant, the Indian Valley Mining Company, was incorporated, and, after the execution of the notes and mortgage for fifty thousand dollars, the mine was conveyed to it. Ho stock of the corporation has been issued, but the parties still retain their respective interests as agreed upon.