Helping Hand Building & Loan Ass'n v. Samuelson

Opinion by

W. D. Porter, J.,

This appeal is from the order of the court below refusing to open a judgment and let the defendant into a defense. The proceeding was begun by a scire facias upon a mortgage, and a judgment in all respects regular upon its face was entered against the defendant on March 26, 1898. The defendant, on May 9, 1898, presented his petition to the court below admitting the amount of the loan and the execution of the mortgage, but alleging that the debt had been paid in full. Pie presented a supplemental petition on August 6, 1901, alleging that the charter of the association to which the mortgage had been given had expired on September 13,1893, and that a new corporation bearing the same name had procured a charter on November 4, following; that the mortgage in question had never been assigned by the corporation to which it had been made to the association which now brought suit upon it, and that the defendant never had been indebted and never had executed a mortgage to the plaintiff. The plaintiff filed an answer and testimony was taken by the parties respectively. The allegation of the defendant that the mortgage had been paid was not sustained by the evidence. The averment that the charter of the association to which the mortgage had originally been made had expired appeared to be true, but it also appeared that by consent of all the stockholders in the old association, including the defendant, the assets of that body had been handed over to the new corporation, which at the same time had assumed all the liabilities of tbe former body and that such stockholders had treated the new corporation as the successor of the old. The defendant continued to pay his dues and interest to the new corporation for about four years after it was formed, and received statements showing that the new association was discharging the obligations of the old and was relying for reimbursement upon the assets of which the mortgage in question was a part. It was the duty of the court below to dispose of this rule to open the judgment upon equitable principles, and we are not satisfied that the conclusion reached involved any abuse of discretion. It is true that the evidence did not establish that there had ever been any formal assignment of the mortgage by the old association to the new, but all the stockholders of both associations had dealt with the property as if there had been an actual assignment. The defendant having permitted others to rely upon this understanding and himself acquiesced in it for four years, ought to have raised the question as to the formality of the assignment at the time the writ of scire facias was served upon him. Having waited for three years after the presentation of his original petition to open the judgment upon the ground of payment, before raising the question as to the regularity of the assignment, it would be inequitable to allow his present contention to prevail.

The judgment is affirmed.