Brewster J. Allison et al., as Executors, etc., Respondents, v. Rosa Schmitz et al., Appellants

Brewster J. Allison et al., as Executors, etc., Respondents, v. Rosa Schmitz et al., Appellants. (Argued March 2, 1885; decided March 17, 1885.) Reported below (31 Hun, 106).^ This action was commenced to foreclose a mortgage for $2,500, dated April 2, 1866, executed by George Kramer to Abram J. Jones. The following facts appeared. The mortgagor, subsequent to the execution of the mortgage, conveyed the mortgaged premises to Rosa Schmitz, the appellant, subject to the mortgage which she assumed, and agreed to pay and discharge as part of the consideration for the premises. Afterward the mortgage came by assignment to Amanda Ackerman, administratrix, with the will annexed, of the estate of George Smith, deceased, and in April, 1875, she commenced an action to foreclose the' same. Rosa Schmitz then applied to George S. Allison, plaintiff’s testator, for a loan of money to pay the mortgage and the costs of foreclosure, and Allison consented to make the loan. It was arranged that he, Mrs. Schmitz and the holder of the mortgage were to meet at the office of John J. Oole, who was, as may be inferred, an attorney, who usually did Mrs. Schmitz’s business, and who was expected to represent her in the transaction concerning the loan and the mortgage. Oole, having been notified by some one of" what was to be done at his office, wrote a letter to one Taylor, the agent of Mrs. Ackerman, to bring the mortgage to his office with a satisfaction-piece. The next day Oole telegraphed' Taylor to bring an assignment of the mortgage, and in pursuance of that' telegram he appeared on, the day named at the office of Cole with the mortgage, and with both an assignment thereof and a satisfaction-piece. There Allison produced $3,000, and paid to Taylor the amount due upon the mortgage, including costs and interest, and paid the balance, a small sum, to Mrs. Schmitz, and she then executed to him a mortgage-for $3,000, upon the same premises for the money thus paid and loaned by Allison. It did not appear what was done with the satisfaction-piece, or what became of it, and so far as appears in the evidence it was never thereafter seen or heard of. The assignment was left at Cole’s office by Taylor with the mortgage, and it and the mortgage were carried away and retained by Allison, and they were produced by him upon the trial of this action, and no further account is given of them. At the time the money was paid, Oole indorsed upon the bond accompanying the mortgage as follows: “ Interest paid in full on the within bond until April 1, 1875,” which was the date of the mortgage for $3,000. In August, 1881, Allison commenced an action to foreclose the mortgage for $3,000. Mrs. Schmitz defended on the ground of usury; she succeeded in her de fense, and the mortgage was declared void for usury. This action was then commenced for the foreclosure of this $2,500 mortgage; in her answer Mrs. Schmitz denied the assignment of the mortgage to the plaintiff by Mrs. Ackerman, and alleged that she paid her the amount of the mortgage in full with the costs of the suit pending for its foreclosure, and received from her a satisfaction-piece thereof; and that was the sole defense set up by her in this action. The court found that on the 22d of April, 1875, Mrs. Ackerman, as administratrix of George Smith, deceased, assigned the mortgage to Allison, who paid her the full amount thereof, with interest and costs of foreclosure; that Eosa Schmitz executed the $3,000 mortgage pursuant to an agreement whereby Allison agreed to loan her $3,000, and out of such sum to pay Mrs. Ackerman the full amount due on her mortgage for principal, interest and costs of foreclosure, and that he paid such amount and took from Mrs. Ackerman an assignment of her mortgage; that, except by the giving of the mortgage for $3,000, the mortgage in suit had not been paid, and that no interest had ever been paid thereon since April 23, 1875 ; and a judgment of foreclosure was given in favor of Allison. Held, that the evidence justified the finding and judgment. O. P. Hoffman for appellants. Irving Proton for respondent. [MAJORITY — Eabl, J.,] Eabl, J., reads for affirmance. All concur. Judgment affirmed.