Clark v. Sheldon
Clark v. Sheldon
Opinion of the Court
On February 27, 1894, Jeremiah M. Rogers and wife executed and delivered to John Holden, through his agent, the defendant Philo A. Sheldon, a mortgage on 312 acres of land on sections 17 and 20 in the township of Carlton in Barry county for $6,454, due in 7 years and bearing interest at the rate of 7 per cent, per annum. On May 2, 1898, .Rogers deeded 20 acres of this land to Tobias Games. Holden released this part of the mortgaged premises
John Holden died in 1919 and the defendant Norton was appointed administrator of his estate. The mortgages referred to had always been in the custody of the defendant Sheldon and all payments had been made to him. Plaintiffs paid Norton $1,000 on December 22, 1919. A tender was afterwards made of $375 and a discharge demanded and refused, whereupon plaintiffs filed this bill for an accounting as to the amount due and for a discharge of the mortgages from the record.
Difficulty arose between Sheldon and Norton in settling the accounts of the former with the estate. It was finally compromised by certain payments made
It is usually very difficult to arrive at a satisfactory accounting of transactions running back so many years when the memory of witnesses is not always to be relied upon. We cannot but feel that Mr. Sheldon was exceedingly careless in looking after Mr. Holden’s interest in these mortgages and, as he is now the holder of them and the plaintiffs purchasers of the premises subsequent to the giving of the mortgages, we feel it our duty to resolve doubtful questions in their favor. The indorsements which appear on the Jeremiah M. Rogers mortgage are as follows:
“1 — March 13, 1895 ......................... $200.00
“2 — March 26, 1898 ........................ 153.00
“3 — May 3, 1898 ........................... 822.73
“4 — May 25, 1899 .......................... 2,300.00
“5 — March 3, 1900 ......................... 159.50
“6 — March 3, 1901 .......................... 200.00
“7 — January 7, 1904 ....................... 50.00
“8 — December 23, 1915 ..................... 50.00”
Those made on the Claude Rogers mortgage are as follows:
“1 — March 3, 1900 ......................... $159.50
“2 — March 3, 1901 ......................... 200.00
”3 — April 24, 1905 ......................... 2,350.00
“4 — January 7, 1904 ....................... 50.00'
“5 — December 23, 1915 ..................... 50.00
“6 — December 22, 1919 ..................... 1,000.00”
It will be observed that several of the items are
There is no positive proof that any other payments were made than those indorsed. Plaintiffs, however, claim that the $750 expressed as the consideration for the release of the 20 acres sold by Rogers to Games, executed on April 15, 1898, should be credited on the mortgage. The defendant insists that this payment is represented by the item of $822.73 indorsed as paid on May 3, 1898. Fortunately, we áre not without quite convincing proof of the transaction. Games purchased 40 acres from Rogers, for which he paid $1,400; 20 acres was included in the Rogers’ mortgage and 20 acres in a mortgage given to one Foster for $550, on which there was then due $577.27. Mr. Sheldon was also acting as the agent of Foster. The Foster mortgage was paid and discharged on the margin of the record on the same day the Holden release was recorded. The date of the release is significant. It was executed April 15th, whereas the deed was not given until May 2d. While the deal was in progress, Sheldon secured the release from Holden. It was doubtless then expected that but $750 would be paid on the mortgage, but, when the
Plaintiffs also claim that a credit should be given for $2,326.46, stated as a consideration for the release from the mortgage of the land sold by plaintiffs to Mrs. Allerding; that it is not represented by the $2,350 indorsed as paid on April 25, 1905. ■ We are not so impressed. The release was executed on August 18, 1904. The difference in the dates is perhaps accounted for by the fact that Mrs. Allerding did not make the payment to Sheldon in cash. It appears that in 1905 she gave a mortgage to secure the payment of $1,250 of this money. The discrepancy in the amounts, while not fully explained, is, we think, immaterial. Plaintiffs were the owners of the entire farm after they got the deed from Clarence in March, 1904. They make no claim that they thereafter made a payment of $2,500, or any like amount, on either of these mortgages. There is no proof that such a payment was made by any other person. The testimony of Henry Sheldon, who kept the books for his father, is very convincing that but one payment was made. The credit having been given for the entire $2,500, we think this item deserves no further consideration. If we eliminate these two items, for which plaintiffs claim they should receive credit, a simple matter of computation is left. Plaintiffs’ counsel do not point out any inaccuracies in that adopted by the trial court, so we assume that the amount found to be due is correctly stated. The length of the interest-bearing period accounts for the large, amount.
Counsel strongly urge that plaintiff, at the time he purchased, relied upon the statements made by Mr.
“I had talked with Mr. Sheldon about it and had talked with him in regard to what the mortgage was on the farm and Mr. Sheldon told me what it was and he corroborated what Mrs. Rogers said, they told me that Claude and Clarence was to pay this mortgage in the will and that they had taken up the old seven per cent, mortgage and given a six per cent, mortgage for the balance due on the farm. I communicated that to Mr. Sheldon and he said that was true, that they had taken up the seven per cent, mortgage and given a six per cent, mortgage for the balance. * * * He said there was only the one mortgage on the farm, and I asked him because he had an abstract office and I supposed loaned money and I never knew Mr. Holden owned the mortgage. He told me approximately the amount of it. I cannot remember the exact figures, but it was under the amount going to Clarence and that is why I drew in the deed what there was over thirty-four hundred forty-five dollars should go to Clarence Rogers at St. Ignace and I got my information about the mortgage and the amount from Mr. Sheldon. I understood that that mortgage covered the one hundred sixty and the sixty and the seventy-two acres. I did not know who executed the mortgage.”
Mr. Sheldon, as a witness, denied having made such statements. Were there no other facts or circumstances of a corroborative nature, we should be in-
It is insisted that the claim under the original mortgage is barred by the statute of limitations. Plaintiffs insist that the payment of $50, made by them on December 23, 1915, indorsed on both mortgages, was intended to apply on the Claude Rogers mortgage and that the last payment made on the Jeremiah M. Rogers mortgage was therefore made on January 7, 1904, more than 15 years before the filing of the cross-bill. The view we have expressed as to the effect of the giving of the mortgage by Claude is an answer to this claim. It was not accepted as a payment on the original mortgage. It was not recorded. It was executed conditional on Clarence also executing a mortgage on his land for the balance then due. It had simply the effect of a double mortgage to secure the same indebtedness. Any payments made on it were payments on the original indebtedness and indorsements made on it were in law and in fact evidences of payment made on the original mortgage. It being undisputed that payments were made in 1901, 1905 and 1919, the statute was no bar to the relief prayed for in the cross-bill and granted in the decree.
The decree rendered may do an injustice to Mr. Clark, but we are persuaded that it was justified by the preponderance of the proofs. This litigation well illustrates the necessity- of those purchasing real estate
The decree is affirmed, with costs to the defendant Sheldon.
Reference
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- CLARK v. SHELDON
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