Huntzicker v. Dangers

Dodoe, J. The findings declare, inter alia, that by means of certain representations the plaintiff induced prospective buyers to- refrain from bidding at the foreclosure sale, and thereby was enabled to- bid in the lands at less than otherwise possible,- and much less than their value. This finding has support in the testimony of a witness that he desired to purchase certain eight forties, and would have gone as high as $3,000 for them, but was deterred by plaintiff’s request that he be permitted to buy without interference, as he could handle the lands to better advantage afterward at private sale, and KLo-pf was to have the benefit of anything obtained from such sales, and that plaintiff did bid in that particular land for about $1,600. It has further support in the fact that [574] plaintiff did, almost immediately after the foreclosure, sell all of the lands bid in by him to one who was present at the sale for more than fifty per cent, advance over the sum at which they were bid in. Still other facts and circumstances tend in the same direction, hut the foregoing are sufficient. True, the plaintiff denied making any such representations, but we are unable to say that any clear preponderance of evidence antagonizes the finding. From such fact it results that, while the foreclosure sale, followed by order of confirmation, may have served to transfer legal title, the plaintiff, on most elementary principles of accounting between mortgagor and mortgagee, must be charged with at least the amount he in fact received for the lands. Upon being so charged, it is entirely apparent that the evidence supports the further finding that the debt of $10,000, as collateral security for which defendant’s mortgage was assigned, had been fully paid and satisfied before this action was commenced. From this condition but one conclusion can be drawn: Upon the satisfaction of the debt the collateral, ipso facto, reverted to the assignor of defendant’s mortgage, Frederick Klopf, and all right or interest of the plaintiff was extinguished. At the time of commencing this action, therefore, he could not be the real party in interest in the relief sought. He could have no right to recover anything from defendant. Hence the judgment dismissing the complaint is right, and there is nO‘ necessity to consider whether certain other findings of fact and conclusions of law leading to the same result are well founded. By the Court. — Judgment affirmed.