Bailly v. Farmers' State Bank

• Citation: 35 S.D. 122,150 N.W. 942
• Decision Date: 03 February 1915
• Docket Number: 3480
• Parties: DAN BAILLY, Chas. H. Bailly and Edward Bailly, Plaintiffs and respondents, v. FARMERS' STATE BANK OF SISSETON, Defendant and Appellant, Inez Bailly, Louis Bailly, Arthur Bailly, and Inez Bailly, Defendants.
• Court: South Dakota Supreme Court

35 S.D. 122, 150 N.W. 942 (1915)

DAN BAILLY,

Chas. H. Bailly and Edward Bailly,

Plaintiffs and respondents,

v. FARMERS' STATE BANK OF SISSETON, Defendant and Appellant Inez Bailly, Louis Bailly, Arthur Bailly, and Inez Bailly,

Defendants.

South Dakota Supreme Court

Appeal from Circuit Court, Roberts County, SD

Hon. Clay Carpenter, Judge

#3480--Reversed

Howard Babcock, Thomas L. Bouck

Attorneys for Appellant.

C. R. Jorgenson

Attorneys for Respondents.

Opinion filed February 3, 1915

SMITH, P. J.

Appeal from the circuit court of Roberts county. Action to cancel a deed and to recover possession of real estate. The complaint alleges that on or about the 22d day of July, 1903, one Charles E. Bailly, was seised as owner in fee simple, and was in possession of premises occupied by himself and family as a homestead; that Chas. E. Bailly died July 22, 1903, and left surviving him his wife, Inez Bailly, and seven sons and two daughters, all minors, two of whom are since deceased; that about the 26th of, January, 1905, Inez Bailly executed and delivered to the Reservation State Bank of Sisseton an instrument purporting to be a warranty deed, conveying to said bank the premises described; that said conveyance was without consideration, and that the property was the homestead of Inez Bailly and her minor children at the time said deed was executed; that the defendant, without right or title, took possession, under said deed, and has held possession since, to the plaintiff's damage in the sum of $815.

The defendant Farmers' State Bank, among other things, alleged by way of counterclaim that prior to the time Charles E. Bailly, deceased, became owner of the property, it was subject to a mortgage executed by Charles T. Roberts and his wife, former owners, to the Union Savings Association of Sioux Falls, S.D., for $250, which mortgage was dated May 1, 1903, and filed for record May 22, 1903; that default was made in the conditions of said mortgage, and it was foreclosed, and the premises sold to the Union Savings Association, June, 3, 1905, for the sum of $319.35, and a certificate of sale delivered and recorded June 3, 1905; that the certificate of sale was outstanding and the premises unredeemed on or about the 29th of May, 1906, when the defendant bank, to protect its interest in said premises, under said deed, and at the request of Inez Bailly, paid to the Union Savings Association the sum of $341.40, to redeem from said sale, and the further sum of $51.38 for taxes paid by the Union Savings Association, subsequent to foreclosure, making a total of $392.78 paid in redemption of the premises, and that the Union Savings Association, on June 1, 1906, made and delivered to the defendant bank a certificate of redemption, whereby it canceled and discharged said sale and certificate thereof, but did not cancel or discharge the mortgage given by Charles T. Roberts and wife, but that the Union Savings Association did deliver to the defendant bank the mortgage and note executed by them, and said defendant has ever since held the same as security for all indebtedness of Inez Bailly; that the amount of said redemption and taxes was included in a note for $500 executed by Inez Bailly to the defendant bank on June 28, 1906, and with the understanding and agreement with her that the acceptance of said note should not be any waiver of said defendant's right to be subrogated to the rights of the Union Savings Association, for the amount paid for redemption and taxes. The defendant bank demands a decree, that it be subrogated to the rights of the Union Savings Association, and of foreclosure of said mortgage, and prays for general relief.

The plaintiff Dan Rainy, a minor, brings this action, in which he is joined by Chas. H. Bailly and Edward Bailly, adult heirs of Chas. Bailly, deceased. The widow and other children, having refused to join as plaintiffs, are made defendants. Trial was to the court.

At the trial the defendant bank introduced a large amount of evidence covering the matters above referred to, and at the close of the trial requested findings thereon, which were refused by the trial court. This refusal is assigned as error. The only findings made by the trial court were, in substance, that Chas. E. Bailly, at the time of his death, was owner and in possession of the premises, which were occupied by himself and family as a homestead; that he died on the 22d day of July, 1903, leaving the widow and minor heirs; that about July, 1903, the widow, Inez Bailly, departed from the homestead, and left her minor children, and on or about the 28th of January, 1905, made, executed, and delivered to the Reservation State Bank, now the Farmers' State Bank, the warranty deed referred to; that at the time said deed was executed Inez Bailly was not the owner of the property, but the same was the homestead of herself and minor children, and is now their homestead; that the defendant bank took possession of said premises May 24, 1909, and since that time has retained the same; that the value of the use of said premises is the sum of $448; that demand was made for possession by the minor children, which was refused.

As conclusions of law, the courts finds that the deed executed by Inez Bailly is null and void, and should be canceled, and that Dan Bailly, Louis Bailly, Arthur Bailly, and Inez Bailly, minor children of Chas. E. Bailly deceased, are entitled to possession of the premises, and to a judgment against the defendant bank for $448, with interest amounting to $59.64.

Appellant assigns as error, among other things, the failure and refusal of the trial court to make findings upon the facts and issues presented by the pleadings, and error in entering...