Mountain Home maverick. [volume] (Mountain Home, Idaho) 1906-1911, 1910-03-10

this concern, when the evidence
shows that this book was kept
loosely and in a hap-hazard manner.
mostly by typewriter slips. placed
in OF mucilaged on the pages.
| am firmly convinced that as far
as the defendant, Great Western Beet
Sugar Company, is concerned, that 1t
is absolutely estopped from denying
the validity of this mortgage on the
ground that the same was not author
lied by the Board of Directors in
the absence of any tender on it's part
to refund the money borrowed and
to place the parties in statu quo.
/ find this to be the law as laid down
! by textbook writers and announced
/ by the Courts, and irrespective of the
authorities, any other rule would be
the perpretation of a fraud under the
guise of judicial procedure, but
counsel for defendants and cross
complainants will say that such rule
doesu not apply to them, but in look
ing and searching for the equities of
the situation, the Court must not be
unmindful that the record here
shows that the Hewitt mortgage was
filed for record and recorded the day
it was given, to-wit: January 80.
1907, and that it was there as con-
structive notice to the world and that
the law implies that when they took
their second mortgage. filed their
liens and bought water rights it was
with the knowledge that this de-
PENDANT company had borrowed
money to the extent of $80,0O0.OO
and had given a mortgage therefor
for their rights, as the law says, they
must have known of the Hewitt
mortgage at the time they took their
second mortgage. bought water rights
or filed liens, is in no wise injured
or impaired by a finding that the
mortgage was duly authorized.
True, if a Court should find that
because of this question, the mort
gage is illegal and Therefore cannot
be fOreclosed, they gain by it, but
it is not a gain predicated upon an
adjudication of their rights at the
time of their inception. This would
not be true if any of the defendants
or Noncompliance had plead the
fact to be or attempted to prove that
at the time their rights attached I'M
der mortgage. liens or otherwise, that
they believed this mortgage to be in
valid because it was not properly
authorized by the Board of Directors
and that because of this belief they
had dealt with the defendant COR
poration as they did.
To illustrate the point I attempt
to make: AS the record now stands,
the defendants, Dickey, Daub, ct al,
took mortgage upon the property
covered by plaintiffs mortgage. al
most year and a half after plain
tins mortgage was recorded, and of
which fact the law says, they had
knowledge Said defendants desire
to have their mortgage now take pre-
cedence over the plaintiffs mortgage,
and because plaintiffs mortgage was
not properly authorized by the Board
of Directors, and unless they plead
and prove that the reason they took
such second mortgage or the reason
they desire to have it take precedence
over plaintiffs mortgage is the fact
that they knew that it was not prop
erly authorized and, therefore. CON
tracted with the defendant corpora
ton as they did. l cannot see how
their rights in this matter are injured
or violated. They are simply now
/ getting what they believed they
would get at the time they entered
into the mortgage with defendant
corporation
Relative to this matter. I have
read and re-read plaintiffs Exhibit
No p, which is a copy of the
minutes of a special meeting of the
Board of Directors of the Great Wesr-
. ern Beet Sugar Company, and which
was found in the minute book, au-
thOrizing Mr.. Garrett to borrow
S2O,OOO.00 more from Mr. Hewitt
and to give mortgage therefor, and
also that the Board of Directors rati-
fed the $S0,00O.O0 mortgage, the
position being taken by counsel for
plaintiff that this resolution of the
board ratifies the $SO,OO0.OO mort
gage, while the position taken by
counsel for defendants and cross
compliments is that it is a condi-
! tional ratification. which is that the
board will ratify the SSO.OOO.OO
mortgage if Mr. Hewitt will loan
/ them $2O,00O.0O more, and inasmuch
! as Mr.. Hewitt, the plaintiff, did not
+ loan the $20,0OO.OO, they therefore
contend this resolution is not a rati-
fication of the $SO,OOO.OO mortgage.
One view of the language of this
, resolution will without doubt bear
! such construction placed upon it by
/ cousel for defendants, but it appears
to me that equity should cry out to
'"N CoVAe ~ pioNt buc OAucI CONSTITUTE
ton upon this resolution, for confess
to counsel | cannot see the justice of
permitting Board of Directors to
say in a resolution that they will
acknowledge the validity of a valid
100000 debt, if they be given
S2O'OOO.OO for doing it, and that if
you dent advance an additional loan
of S2O,O00.00. then we will deny or
refuse to ratify a valid debt of $780,
10000
The decree herein shall provide for
return to the defendant corporation
OF the collSteral notes held by Mr..
Hewitt or shall contain such a con-
dition precedent
Counsel for defendants and cross
complainants, Daub. ct al. urges that
the Hewitt mortgage is invalid be-