The Redwood gazette. [volume] (Redwood Falls, Minn.) 1873-1940, 1898-02-03

The Court then recites the transfer
to Grimmer, and also states that
Scanlon paid a years interest on the
mortgage, but to whom. it does not
appear. 1t also recites Judge Web
ber's findings that the note and mort
gage we're usurious, but that by reason
of the subsequent transfers and as
sumption clauses the plaintiff was
estopped from claiming relief on that
ground. The Supreme Court, through
its justice, then says:
"As stated at the outset, the main
question here is the one covered by
the conclusion that the mortgage was
and is void because Davis, for the pur-
pose of the transaction and for some
undisclosed reason. assumed the name
of Alexander as mortgage. The
Court seems to have been of the
opinion that because the mortgagors
were misinformed and mislead, and
intended to mortgage their land to
Alexander, and not TO Davis, the in
strument was absolutely void for want
OF necessary parties, and therefore, de-
fendant, Grimmer, an innocent pur-
chaser, who parted with his money in
good faith, is to be deprived of his
security and probably made to lose
his investment. Any rule or doctrine,
which would result in such a gross
injustice would have to be exceedingly
we'll settled before we could endorse
it. Fortunately, we are not confronted
with such case. The Court below
failed to apply the true and we'll set
tied rule to the facts. 1t overlooked
the distinction between the assumed
name of a person actually identified
and wholly fictitious name without
an identified person behind it. The
evidence, as we'll as the findings of
fact. conclusively show that Davis as
sumed the name of Alexander, and
identified him as the real mortgagee
under the assumed name. In assum-
ing this name in a business transac-
tion Davis was not engaged in a
fraudulent or criminal purpose, and
he could bind himself as we'll as other
persons by its adoption and use.
ut is we'll established rule of law,
that in business matters contract or
obligation may be entered into by a
person by any name he may choose to
assume. All that the law looks to is
the identity of the individual and
when that is ascertained and clearly
established the act will be binding up
on him and others.
"There is nothing in the contention
OF counsel, evidently quite potent with
the court below, that the mortgagors
we're induced to believe that they we're
dealing with person named Alex
ander, and according to their own
testimony, were opposed to entering
into such transaction with Davis, of
whom they had heard bad reports
Their contract with the mortgagee
was with him and his assigns, as is
usual in such transactions. They ex-
pressly authorized an assignment of
this instrument. Had the mortgagee
actually borne the name of Alexander
he could at once have assigned to
Davis without consulting the mort
gagors. The point is too far fetched
and fanciful to be of value. The trial
court erred when finding that the
mortgage lacked a mortgage and
wheu holding it to be void"
The Supreme Court gives Judge
Webber little balm by saying that he
did not err in his conclusions on the
usury, but says:
"Of course, we do not decide that
the defense of usury could not be sue
cessfully interposed in such an action,
for the question is not in the case."
In conclusion it says:
"a vendee who accepts conveyance
of land subject to mortgage thereon
and containing a covenant whereby
such vendee assumes aud agrees to
pay such mortgage is estopped from
asserting that the obligation secured
thereby is usurious. The whole title
of such vendee rests upon the convey
ance and the continued existence of
the mortgage, as an encumbrance,
forms part of it. The conveyance is
evidence of title, and when proven, as
such evidence, the existing mortgage
and the assumption is also proven. A
grantee cannot be permitted to claim