The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-06-09
SAIN T Paul.
RULING IN MORTGAGE CASE.
Judge Otis Files Memorandum of
Interest.

Judge Otis Files Memorandum of
Interest.
Judge Otis filed an interesting men,
orandum yesterday in connection with
his decision denying the application of
WyilyS Hodges for an injunction order
restraining Harriet E. Porter and
other representatives of the estate of
DIR. Kendall, deceased. of New York
state, from attempting to sell under
foreclosure proceedings certain proper
ty belonging to the plaintiff. The
memorandum, which sets forth the
salient facts, is as follows:
This is an application to enjoin the fore
closure of a NOR gage by advertisement upon
the ground that the mortgage debt has been
fully paid. Ii appears that the st. Anthony
Park company in 1891, then owning the prop
erty In question, borrowed from one Kendall
through Cochran & Wash, the sum of s., 800
and gave note due in five years, secured by
This mortgage
Afterwards in 1892 the company sold the
property, subject to the mortgage, to one
Wheeler OF New York, who desired to pay the
mortgage at once before maturity, and through
his agent, one Pratt applied 10 Cochran &
Walsh to ascertain If this could be done.
Kendall had meantime died and one Eaton
had been appointed his executor and had au-
thoriZed Cochran & Walsh to collect matured
and delinquent interest on this and certain
her mortgages but without any other au-
thority IN the premises.
Cochran & Walsh without first consulting
Eaton and obtaining his consent TO accept pay
ment before due. notified Pratt that ii would
be so accep ed and thereupon at Pratts
instance, Wheeler sent the Whole amount OF
principal and interest to Cochran & Walsh,
who Immediately deposited it in the bank to
their own personal credit. They then wrote
Eaton who he'd the mortgage executor,
not that they had received the money, but that
If he would consent TO receive it they could at
once collect and remit it, thus leading him to
suppose that its payment depended on some
fa1ft af an
In due time Eaton forwarded the note mort
gage and satisfaction, authorizing Cochran &
Walsh TO make the collection and remittance.
They claim TO have had sufficient money in
bank to their credit at the time Of receiving
this authority to have made this remittance
but they never did make the same nor did
they ever surrender 10 Wheeler the notes,
mortgage and satisfaction, and Eaton does not
seem TO have known OF this payment for a
considerable time thereafter, as 1t appears
from his letters that he for several
months urging collection and remittance and
was apparently ignorant Of the true condi-
ton of affairs.
Plaintiff who claims under Wheeler, insists
that Eaton by so forwarding the notes. mort
gage and satisfaction thereby rtified the pay
ment so without authority received by Coch-
ran & Walsh.
l cannot so hold.
Cochran 4 Walsh by receiving the money
and depositing it to their personal credit in
their general bank account thereby converted
the same to their own use.
thorized to collect and receive the money they
had sufficient in bank or elsewhere to meet
this demand; 1t was not the money paid to
them nor is it claimed that it formed any part
OF the money so in bank.
There be ratification except it be
with the knowledge of all. the material facts
and this Eaton did not have. Had he known
that the money had been so paid and convert
ed by Cochran & Walsh to their own use and
that he must look to them personally for its
payment he might well have adopted an en-
tirely different course.
From their letter he had a right to expect
that on receipt of the note and mortgage
satisfaction they would at once collect and
remit to him direct the proceeds of the col
lection. and not that the same would be de-
posted in bank in their own name, subject
to their own control for personal uses to the
hazards of their business and to the claims
of their creditors.
feel very clear that the principal of this
mortgage debt has never been paid.
There was however, an interest coupon
amounting to about $50 past due at the time
of this payment
/ think Cochran & Walsh were authorized to
receive this interest, and this coupon note
must accordingly be considered to have been
paid and to this extent the amount claimed
to be due in the foreclosure of sale is ex-
cessive.