Cox v. Bowman

• Citation: 21 N.W.2d 277,71 S.D. 72
• Decision Date: 19 December 1945
• Docket Number: 8790.
• Parties: COX v. BOWMAN et al. (WOODWORTH, Intervener).
• Court: Supreme Court of South Dakota

21 N.W.2d 277

71 S.D. 72

COX v. BOWMAN et al. (WOODWORTH, Intervener).

No. 8790.

Supreme Court of South Dakota

December 19, 1945

Rehearing Denied Jan. 18, 1946.

Alan Bogue and Everett A. Bogue, both of Vermillion for appellant.

H D. Brown, of Gann Valley, and H. L. Woodworth, of Ipswich for intervener and respondent.

RUDOLPH Judge.

Appellant brought this action to foreclose a mortgage on real property located in the city of Vermillion. Milton M. Woodworth, the respondent, intervened in the action and by his complaint in intervention asserted that he is the owner of the real property free from any claim of the appellant and asked that title to the property be quieted in him. F. E. Bowman, administrator of the estate of Jason E. Payne, deceased, and the other defendants who are the heirs at law of Jason E. Payne, made no appearance in the action.

The facts disclose that Jason E. Payne during his life was an attorney at law at Vermillion and was the record owner of the real estate involved; that for some years prior to the time the mortgage was signed Mr. Payne had been acting in the capacity of a financial agent for the plaintiff, Mrs. Cox. In this capacity Mr. Payne had in his possession money belonging to Mrs. Cox and loaned this money to various persons securing the loans by real estate mortgages. From the record it appears that there were some irregularities in the handling of the Cox money by Mr. Payne and the mortgage in question, in the amount of $1,400, was apparently made to secure a portion of the funds of Mrs. Cox that Mr. Payne had so mingled with his own. According to the face of the mortgage it was signed April 26, 1941. However, this mortgage remained in the possession of Mr. Payne from that date until sometime after his death which occurred September 11, 1941. Subsequent to the death of Mr. Payne this mortgage was found among his papers. The plaintiff was advised of the existence of the mortgage and thereafter it was placed of record in Clay county.

Intervener's claim to title to this land rests upon substantially the following facts:

Intervener testified that in 1931 he purchased a tract of land, of which this mortgaged land is a part, from the Davis estate then being probated in Clay county; that he made this purchase at the suggestion of Mr. Payne who was his cousin and at the time of the purchase it was agreed that Mr. Payne would furnish the money necessary to make the purchase and Woodworth would repay this money to Mr. Payne in installments. Title to the property was first taken in the name of one Mae Saunders, a sister-in-law of Mr. Payne and later transferred to Mr. Payne. Immediately upon its purchase the intervener Woodworth went into possession of the property, occupied the house located thereon and made various improvements and additions to the property all at his own expense. He continued living on the property until the time this action was tried and is now in possession thereof. During the course of the trial there was received in evidence certain book accounts of Mr. Payne showing payments by Woodworth with the notation as follows: 'Received of M. M. Woodworth on Davis house contract.' These payments varied in amount from $10 to $80 and were made rather uniformly each month. The payments continued from June, 1931 through October, 1936. It further appears that a portion of the land which was originally purchased was subdivided by Mr. Payne and Mr. Woodworth. Several houses were built on the different tracts which were sold and the profits derived from the sale divided.

The trial court held the intervener to be the beneficial owner of the property, that plaintiff's mortgage had not been delivered so as to make it effective and quieted title to the land in intervener. The plaintiff has appealed.

The first question goes to the admissibility of Mr. Woodworth's testimony with reference to the conversations with Mr. Payne concerning the purchase of this property. The applicable rule governing the admission of this testimony is found in SDC 36.0104 which provides: 'In actions, suits, or proceedings by or against the representatives of deceased persons including proceedings for the probate of wills, any statement of the deceased whether oral or written shall not be excluded as hearsay, provided that the trial judge shall first find as a fact that the statement was...