Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-10-04

H1I E|Nt ~ .4TFTET WT-I7 N-TF VIZ TgTT
edge Or actual notice uneil after he
had paid the notes secured by this
mortgage in full to Lund, some two
years after their assignment. Luna
receipted TO defendant for such pay
ments but delivered no satisfaction
OF mortgage; nor did he deliver de-
PENDANT the principal note or the cou-
pOEs last paid, but stated he would
execute a satisfaction and deliver the
notes to defendant later. Lund died
without paying plaintiff the amounts
he had SO collected in satisfaction Of
the note and mortgage. Plaintifl
p~rosecutes this foreclosure to collect,
asserting that Lund had 40 authority
to receive payment, and that such
payment to Lund, with plaintiffs as
signment Of mortgage on record. did
NOT discharge the mortgage and debt
so secured.
HELD: l.. The place of contract
and the place stipulated for perform
ance thereof, together with the place
OF the execution and delivery of the
assignment, was within Minnesota,
where payment also was made, and
with the Minnesota Statute, Sec. 1888,
governing payment under such cir.
cumstances having been plead by ans.
Wer and proven, with the statutory
construction placed thereon by the
Minnesota supreme court under which
foreign law the payment by defend.
ant to Lund, mortgage, was valid and
satisfied the debt and mortgage. this
court will apply and follow that for.
eign law sc governing the debt, not.
Withstanding that under the prOvis.
ions Of Sec. G1G7, r.. G. 1905. such
payment if it had been made within
this state upon a mortgage indebt-
edness contracted, with place of pay.
ment within this state, would have
been invalid and would not have oper.
ated to discharge the debt and mort.
gage.
2. The fact that the debt so pay
able in Minnesota and the subject of
this transaction between Minnesota
parties was secured by a mortgage
upon real estate in North Dakota, is
not - itself sufficient under the proof
to change the situs of the transaction
to this state so that our statute as to
payment, and conflicting with that of
Minnesota, will apply.
3. In this state a real estate mort
gage securing promissory notes is bur
an incident to the debt and the salts.
faction of the debt IN Minnesota dis.
charges the mortgage on property
here situated.
4. The question Of the validity OF
the payment Of the debt in no wise
involves title to real estate so as to
make applicable the laws OF this state
under the rule that in case OF a con.
llict OF law that law concerning title
where the land is situated will con.
troll.
5. That under the foreign law, as
declared by Olson VS.. N. w. Guaranty
Loan Company, G5 Minnesota AIS, de.
PENDANT was not guilty of laches or
negligence sufficient to prevent the
discharge of the debt when payment
was made by him in failing to demand
the production of the notes or in fail.
ing to refuse to make payment unit.
their production.
G.: No notice Of the change in own
ership of the negotiable principal
note and remaining coupon interest
notes is to be imputed to or presume
ed as had by defendant simply from
the fact that the first interest on.
pons were paid by defendant to Lnnd
at maturity, and which payments we're
by Lund transmitted to plaintiff, and
that the coupons so paid. which were
received by defendant from Lund,
personally, bore the Endorsement:
"Pay to the order OF C. A. Cosgrove,
waving demand, protest and notice,
j. G. Lund." There is no presumption
Of such notice in the face of defend.
ants positive testimony that he made
sucn payents under the supposition
that Lund still owned said mortgage
and notes.
z. The payment made under the
laws Of Minnesota thereto applying
satisfied the debt is discharged the
mortgage, and the judgment for forc.
closure for collection Of the debt is
ordered set aside and d decree direct.
cd to be entered discharging the debt
and mortgage.
(SylIabus by the court.)
An appeal from the district court
of Kidder County, Winchester, j.
Reversed. Opinion by Goss, j.
Stanley and Phelp, OF Steele, N.
d., and S. p. Ellsworth of jamestown,
N. D., and Jesse Manufacturing, OF
Minneapolis. Mimi, attorneys for
plaintiff and respondent.
r. G. Mcfarland and J. "A. Murphy,
of jamestown, N. D, and Samuel VIVA.
ley, Of st. Paul, Mimi, attorneys for
ond onnoI1ont