The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-05-18
OPINION OF THE COURT
In BIG REAL ESTATE CASE
Remarks Of Judge Chas A. Pollock in Deciding Case North
ern Trading Co. Against Anna W. Ledbetter, ct al,
IN Favor Of the Plaintiff

| ferred to Mr.. Kerr and from Mr.. Kerr
to Mr.. Malette, and including outside
encumbrance paid, amounted up to
in the neighborhood of $4,5OOO
for which he had as security
only Mrs. Ledbetter's assignment
of the contract, Mr.. TiIly's assignment
and these chattel mortgages. UP to
this point of time there is no question
as to what the relation between Mr.
Malette and the Ledbetters was. He
was a mortgage and the Ledbetters
We're mortgagors. That relation con-
tiPL1ed down until the pivotal year OF
1905. We must recognize the fact that
sometimes people become confused in
giving descriptions of past events and
will occasionally mis-speak themselves
with reference to the exact year of any
given event. That occurred once or
twice in this case, but an examination
of all the testimony will disclose ex-
actly what year was meant whenever
any reference was made to any par
ticular transaction. 1 say 1905 was the
pivotal year, because it was during
that time that this litigation between
Mr.. Kerr, who had bought the Eddy
judgment, and the Ledbetters was going
on, and during which time Mr.. Malette
had been appointed by the court as a
receiver. Mr.. lilly insisted that the
Kerr judgment was not a lien, and in
that belief, until the final decision of
the court the Ledbetters as well as
Mr.. Malette rested, and if that iudg-
ment had been destroyed there would
have been very much less amount
that would have had to be charged
against the land. There is no doubt
either, from this testimony, that during
that year and up until the decision of
the court upon that question, Mr.. Ma
lette was seriously considering the
question of stepping in TO aid the Led
betters further and taking this land
over as further security for what was
owing to him and what he would have
to pay if he bought the Basset interest.
This Is clearly shown by the testimony
or Mr.. Malette himself. In answer to
certain questions upon the part of Mr..
Stambaugh, Mr. Malette testified, and
l quote one or two of his answers:
MaIette's Testimony.
@. / am talking now of the con-
Versat1on between you and Ledbetter
and between you and Tilly. When they
wanted you to advance the money to
take up the title under this contract
and hold 1t as security it was the ar
rangement then that when Ledbetter
paid YOU the money back you were to
re-convey the property to him or his
wife? A. Either one of them. YES when
was paid back the money that had
invested. Q. You were to re-convey?
A. To either one, whichever they said.
Q. Now, did you make him a written
agreement of that kind?. A. 1t never
got along that far. @. Well you were
TO make him a written agreement of
that kind? A. Oh, would if it had
been necessary. There wasn't ANYTHING
said about that OF course I suppose
that was understood O. You under
stood it that way? A. / would have
been willing to have done 1t. @. You
understood that was what YOU were
to do? A. No there WASN'T any-but !
say would have done it if it had been
mentioned but 1t was never mentioned
or brought up"
That testimony standing alone and
read alone, would seem to indicate that
at one time during that year Mr. Ma
lette was having in mind the purchase
OF the Basset contract for the benefit
of the Ledbetters, and if that is the
relation which was consummated then
MI Malette in this situation was moth
ing more or less than mortgage, and
indeed, the defendants in this action
in the main rely upon that particular
statement, supported as they claim by
other facts in the case, upon which 70
predicate their defense. If their con-
tention is true upon that question. then
the relation was that of mortgagor and
MORTGAGE In order to answer that
question we must take all the testI-
mony and all the facts with reference
to the manner in which Mr.. MaIette
handled this proposition, at the time
of the getting of the Kerr deed and
thereafter. to see whether his actions
are in perfect harmony with this state
ment upon which the defendants rely.
This deed from Mr.. Basset was made
when he was in Fargo and was ac
knowledged according to the date fixed
In the acknowledgment as March %.
1905. AS it was acknowledged in Far
go. / think we can presume that Mr.
Basset was here in March, 1905. Thar
OF course would be before any crop
was harvested for that year. The evil |
dence shows that Mr.. Malette did not
secure this deed until a short time be- |
fore Jan. 10, 1906, that being the date
that the deed was recorded. So the
question arises: Did he get this deed
before he got the Kerr assignment or |
did he not? 1t must be very patent |
that he did not get 1t until after. In |
the first place, Mr.. Basset would not
have decided to Mr.. Malette with the
Kerr judgment out-wirh the eoa1itabIe
title In Mr.. Kerr--so we must conclude
lin fact I do not know that 1t lis dis
the Basset deed was not
until after the securing of |
the interest owned by Mr.. Kerr.
The sheriff's deed to Mr.. Kerr was
dated on the 2sth day of Noyem-
Der, 1905 At the time this
deed was given, the Ledbetters had
no interest whatever in this land it |
having been entirely wiped out by viz
tue of this sheriff's deed. At that time |
how much was there against the land
In round numbers there was the Eddy /
Judgment or the Kerr interest, approx |
mating, with the judgment he had
bought from the Nichols & Sheppard
20. and which was thereafter passed
'ver to Malette. $4,000 Then there was
he amount due on the Basset contract
'11,2S9. So that would make a total
Indebtedness Of the Ledbetters on that
and Of s16.4Ss. am not giving exact
igures here IN wnat | say at this time.
tut speak in round numbers. Those
are fairly accurate S1e 400 [