St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-04-27
OTIS is FEARLESS.
In a Case at Bar His Ruling
on a Motion is Con-
trary
TO SUPREME COURT RULING
Which He Declares Is Not
Good Law, as Will De-
velop Later.
INTRICATE POINT OF LAW
In Action to Set Aside a Sc
ries of Alleged Fraudu-
lent Mortgages.
INTRICATE POINT OF LAW

An important case is now on trial
before Judge Otis. 1t is the suit of the
New England Mutual Life Insurance
company against Augustus r. Cape
hart, DR.. C. Williams and J. MCINTYRE
TO have set aside as fraudulent a
series of 100 mortgages given for the
purpose of prolonging the period of
redemption of piece of property on
Sixth street in the rear of the Wash
burn building, which was purchased
by the plaintiff on a mortgage fore
closure.
The admitted facts in the case are
that pending the foreclosure proceed
ings instituted by the plaintiff, Cape
hart transferred the property to DR..
Williams, who in turn gave Mcintyre
a contract of sale, and then Mcintyre
executed to Capehart these 100 mort
cages for various amounts, which were
all filed at different Intervals The
holder of each subsequent mortgage
having five days, under the statutes.
in which to give notice of intention to
redeem after the expiration of the
year for redemption on the foreclosure
of the first mortgage has expired,
Capehart thus claims that he has 500
days in which to redeem after the ex-
piration of the original redemption
period. The plaintiff claims that there
was no consideration in the transac-
tons between Capehart, DR.. Williams
and Mcintyre, but that they were
purely for the purpose of taking an
undue advantage not contemplated
by the statute, and are therefore
fraudulent
Attorney Michael, for the defense,
moved for dismissal on the ground
that the complaint did not recite
sufficient facts to sustain cause of
action. In his argument he took the
ground that it did not make any diff
ference whether there was any con-
sideration or not; that the plaintiff
was given possession of the property
as soon as the original period of re-
demption expired and would
LOSE NO RIGHT
or be subjected to no hardship in any
secured in extending the period of his
right of redemption, and as long as no
attempt was made to deprive plaintiff
of any of it's rights, it could not be
held to be fraudulent transaction
Mr.. Michael cited in support of his
position decision of the supreme
court of the state in a case of exactly
the same kind, that went up from Min
1ic he
in that case there were but two SUBJ
sequent mortgages, one being for a
consideration of 50. The person hold
ing this mortgage secured the others
claim and redeemed the property with
in the five days allowed by law. The
purchaser under the original mort
gage, which had been foreclosed.
brought an action, alleging fraud, but
the supreme court held that the re-
demption was lawful.
Attorney Squires, for the plaintiff,
admitted that the decision quoted was
against him, but it was the only one
that could be found, and he consid-
cred it very loose one He did not
think it was good law, with all due
respect to the judge who wrote it.
1t was evident that the law providing
iihC udyo IOI SUBSEQUENT mortgages
to redeem was not intended to be so
construed as to give any such an adj
vantage as that sought to be secured
by Capehart. If the law were to be
so construed, mortgage would be
good for nothing, for if mortgagor
could secure an advantage of 800 days,
he could file an indefinite number of
fictitious mortgages and secure the
right to redeem in twenty years if he
desired.
In passing upon this question, Judge
Otis took the same view of it that Mr..
Squires did in this respect, remark
ing that he realized the decision of the
supreme court was against him, but
he did not consider that decision good
law and he felt satisfied the supreme
court would agree with him on a re-
consideration of the questions in
volved. AS to the sufficiency of the
complaint Judge Otis took that ques-
ticn under consideration until Monday.