Wilson v. White

Hayne, C. This was an action for the foreclosure of a mortgage made to secure the payment of a note for $250. The answer contained a general denial, and an affirmative averment that the note was without consideration. The trial court found this averment to be true, and gave judgment for the defendant; and the plaintiff appeals.

Tiie material facts shown by the evidence are as follows:—

While the property involved was held by one Duncan for the benefit of the Pioneer Bank, and was subject to a mortgage in favor of one Bradley, Duncan made a contract to sell it to the defendant (who had no notice of the rights of the bank) for the sum of $1,800. Of this sum the defendant paid $1,620, leaving due a balance of $180. In this condition of affairs the bank was adjudicated a bankrupt, and the plaintiff and one Hyde were appointed assignees. Thereupon Duncan conveyed to the assignees his interest in the property and in the contract with the defendant. (There is mention of a deed from Duncan to the defendant, but that deed does not include the property involved here.) Hyde prepared a deed from the assignees to the defendant, signed it, and handed it to the' plaintiff to he by him signed and delivered to the defendant upon his paying the balance due upon his contract. Plaintiff never executed this deed, but kept it in his possession. He purchased the Bradley mortgage, paying full value for it out of his own funds, and subse[241]quently brought suit to foreclose it. It is somewhat uncertain who purchased at this foreclosure sale. No documents were introduced in evidence. The defendant testified that the title passed to Bradley, and that he conveyed it to plaintiff, while the plaintiff seems to testify that he himself purchased at the sheriff’s sale, but got a quitclaim deed from Bradley. This uncertainty is immaterial, however; for in either case the title passed to the plaintiff, who thereupon made a deed to “John Warnen,” who was plaintiff’s brother-in-law, and whose real name was Hardwick or Hardwig. He paid no consideration for the deed, but acted in the interest of the plaintiff, and assumed the name of Warnen at his request and for the occasion only.

The defendant offered to pay the balance due on his contract, but was told by plaintiff that the title had passed to Warnen by the foreclosure proceedings. He, however, introduced defendant to Warnen as the man who had the title, and an arrangement was made by which “Warnen” made a deed to the defendant, and the latter paid therefor $200 in cash and gave his note for $250 more, secured by mortgage upon the property. This note and mortgage were transferred by “Warnen” to the plaintiff, and constitute the foundation of the present action.