Corcoran v. Merle

Thornton, J. In this cause, which is an action to redeem certain lands from a mortgage, plaintiffs were, on motion of defendants, non-suited. The mortgage from which plaintiffs claim to redeem was executed by Daniel Jones to Ann Reynolds, on the 12th day of December, 1878, to secure an indebtedness of Jones to Ann Reynolds amounting to the sum of $6,000, evidenced by Jones’ note bearing date on the day last named, with interest, etc. Plaintiffs aver, with a detail of explanatory circumstances, that Jones held the property for them, and as their trustee, and that defendant Merle purchased from Jones with full notice of their rights. They offer to pay the amount found to be due on the mortgage, after crediting the rents and profits received by Merle and Jones, who have been in possession for some time, during which they received rents from the property mortgaged. The defense of Merle, who is really the only defendant, is that he is a purchaser from Jones for a valuable consideration, without notice of any right of plaintiffs, or of either of them.

The facts shown in evidence are as follows:—

On the 12th of July, 1870, the plaintiff and his then wife, Mary, who were then the owners of the land involved in this litigation, borrowed of the Savings and Loan Society $4,000, and to secure the loan and future advances not to exceed $6,000, they on the same day executed a deed of trust to B. D. Dean and E. W. Burr, by the terms of which they granted and conveyed this land to the trustees in joint tenancy, and all the estate they then had or might in any way acquire to it. The deed of trust is in form such as is generally used by the society mentioned above. This deed was recorded July 16, 1870. In 1875, Mary Corcoran, above mentioned, died, leaving the plaintiff John her sole heir. In 1876, John married the plaintiff [96]Annie. On the 27th of May, 1877, the plaintiffs executed a deed of trust to E. W. Burr and J. 1ST. Shot well to secure a loan of $6,000, and future advances, not to exceed $10,000, made to them by the society above mentioned. Both of these loans were evidenced by notes executed by the grantors above named, respectively, at the dates mentioned, to the Savings and Loan Society. On the 18th day of January, 1877, John Corcoran conveyed an interest in the land to his wife, the plaintiff Annie. On the 12th of March, 1878, Gr. Raisch brought an action in the late Twelfth District Court against the plaintiffs E. W. Burr, J. M. Shot well, and H. P. Gallagher, executor of the last will of Mary Corcoran, deceased, to charge the land in question with the lien of a street assessment held by Raisch, in which a default was entered on the 29th of March, 1878, decree entered on the 1st of April, and sale regularly made under the decree to Raisch, on the 2nd of May of the same year.