Connolly v. Wicks

BELCHER, C. On June 1, 1887, the defendant M. L. Wicks executed to Mary Connolly and Patrick Connolly his promissory note for $20,000, bearing interest at the rate of ten per cent per annum, and to become due ¿June 18, 1888; and to secure payment of the note he, on the same day, executed to them a mortgage on two hundred and eighty acres of land, which contained the following clause: “It is agreed that any forty acres of this land will be released from this mortgage on payment of the sum of four thousand dollars for each and every forty acres so released.” On September 7, 1887, Mary Connolly assigned all her interest in the said note and mortgage to Patrick Connolly. On June 22, 1889, Patrick Connolly assigned all his interest therein to John D. [868]Bicknell, the assignment being absolute in form, but intended only as collateral security for an indebtedness of the assignor. On June 15, 1891, Bicknell reassigned the note and mortgage to Patrick Connolly, and on March 7, 1892, the latter assigned the same to Eliza Connolly, the plaintiff. Shortly after the said mortgage was executed Wicks conveyed all the land covered by it to one R. P. Lotspeich, as trustee, for the purpose of making sales thereof in subdivisions. Lotspeich, as such trustee, conveyed to various persons parcels of the land in tracts of ten and five acres each, and eleven of such tracts were released from the mortgage. On May 31, 1888, Lotspeich sold and conveyed to defendant Robertson twenty acres of the said land for the sum of $4,000, which Robertson then and there paid to Wicks, who, under the terms of the said trust deed, was to receive all moneys paid for any of the land held by Lotspeich as trustee; but it does not appear that this money, or any part of it, was paid over to the mortgagee, or indorsed upon the said note, and this twenty-acre tract was not released from the mortgage. On March 29, 1892, plaintiff commenced this action to foreclose the said mortgage upon all the land not released therefrom, making a large number of persons parties defendant, upon the ground that they had, or claimed to have, some interest in the mortgaged premises. The case was tried, findings filed, and judgment entered in favor of the plaintiff against defendant Wicks for the amount due on the note and mortgage, with costs and attorney’s fees, and ordering all the land sold, and the proceeds of the sale applied in satisfaction of the judgment. In due time defendant Robertson moved for a new trial, which was denied, and then appealed from the order denying his motion.

The contention of appellant is that his land should have been released from the lien of the mortgage, and that the findings to the contrary were not justified by the evidence. It is clear that, if the money paid by Robertson for his land had gone to the mortgagee, and been indorsed as a payment on the note, then, under the clause of the mortgage above quoted, the land should have been released. The amount paid was $4,000, and, though the land consisted of only twenty acres, instead of forty, that fact was immaterial, as the greater includes the less. But the mortgagee was under no obligation to release any part of his security until he received