CASES
ARGUED AND DETERMINED
IN THE
SUPREME COURT
OF
NORTH DAKOTA
F. S. Sargent, as Receiver of the Security Trust Company v. John E. Cooley and Minnie E. Clifford.
Opinion Filed November 14, 1902.
Mortgage, and Agreement at Time of Delivery.
1. Action to foreclose a mortgage upon real estate. The defendant John E. Cooley answered the complaint, and alleged, as a defense against the foreclosure of the mortgage, that the mortgage was given without consideration, and that certain agreements were entered into between the mortgagor and the mortgagee at and prior to the execution and delivery of the mortgage, which agreements so alleged are, in effect, as follows: (1) That the mortgage should not, in any event, be available to the mortgagee as security for the debt evidenced by the note described in the same; (2) that the mortgage should only take effect in the event that the note described therein should be negotiated or transferred; (3) that, if the note should be negotiated or transferred, the mortgage should operate only while the note was held by some outside party; and finally that when the note was returned to the mortgagee, if it ever was returned, the mortgagee should at once surrender the mortgage to the mortgagor, viz., to John E. Cooley.
Discharge and Surrender of Mortgage.
2. The trial court admitted testimony to sustain the defense, and adjudged that the mortgage should be discharged and surrendered to the mortgagor. Held, that such ruling was error.
