First Nat. Bank v. D. S. B. Johnson Land-Mortg. Co.

• Decision Date: 29 December 1903
• Citation: 17 S.D. 522,97 N.W. 748
• Parties: FIRST NATIONAL BANK OF CHARLES CITY and A. G. Case, Plaintiffs and respondents, v. D. S. B. JOHNSON LAND MORTGAGE COMPANY and Kate A. Chadwick, Defendants and appellants.
• Court: South Dakota Supreme Court

17 S.D. 522

97 N.W. 748

FIRST NATIONAL BANK OF CHARLES CITY and A. G. Case, Plaintiffs and respondents, v. D. S. B. JOHNSON LAND MORTGAGE COMPANY and Kate A. Chadwick,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Spink County, SD

Hon. J. H. McCoy, Judge

Reversed

Charles M. Stevens

Attorney for appellants.

S. A. Keenan

Attorney for respondent.

Opinion filed Dec. 29, 1903

CORSON, J.

This case comes before us on an appeal from an order overruling separate demurrers interposed by the defendants to the plaintiff’s complaint. The demurrers were upon the following grounds:

“First. That several causes of action are improperly united therein.

Second. That the first cause of action does not, state facts sufficient to constitute a cause of action so far as the plaintiff, the First National Bank of Charles City, is concerned. …

Third. That the second cause of action does not state facts sufficient to constitute a cause of action as to either defendant.”

The complaint attempts to set out two causes of action, the first of which is substantially as follows: It is alleged that the plaintiff the First National Bank of Charles City and the defendant D. S. B. Johnson Land Mortgage Company are corporations; that the plaintiff A. G. Case is the owner in fee simple and in possession of the quarter section of land described in the complaint, and was such owner at all times therein mentioned, and that the defendants and each of them claim an estate or interest in and to the said land adversely to the plaintiffs. The plaintiff’s second cause of action is very lengthy, but may be briefly summarized as follows: It is alleged that the plaintiff the First National Bank of Charles City brought an action in the circuit court of Spink county, in which it made the D. S. B. Johnson Land Mortgage Company and certain other parties defendants, and that as the result of that action a decree was entered quieting the title in the said First National Bank to the quarter section of land described in the first cause of action, together with another quarter, and canceling a certain mortgage alleged to have been executed by one Newell to Samuel McDonald upon the two quarter sections, and that pending said action the land mortgage company wrongfully and fraudulently caused the said mortgage to be assigned to Kate A. Chadwick, defendant in this action, and that she, not being a party to the former action brought to cancel said mortgage and quiet the title to the said land, now claims title under the said mortgage, and that the land mortgage company has fraudulently proceeded to foreclose the said mortgage in the name of the said Kate A. Chadwick; that after the former action was tried and final judgment and decree entered therein, and before the plaintiff bank had any knowledge of the said fraudulent transfer of said mortgage and the recording of its assignment, the plaintiff bank transferred the said premises to its co-plaintiff, A. G. Case, with the usual covenants of warranty; that said plaintiff the said First National Bank, by reason of the said transfer and by reason of its covenants with its said co-plaintiff, Case, is interested in the result of this action, and in having the said pretended assignment, and also the said pretended foreclosure proceedings, canceled; that by reason of the said fraudulent action and conduct on the part of the said defendants, plaintiffs have suffered damages in time and money spent in bringing this action and procuring the cancellation of the said pretended assignment of the said mortgage in the sum of $100, and plaintiff’s demand judgment for the cancellation of said pretended assignment of said real estate mortgage and of the sheriff’s certificate of sale, and that the foreclosure proceedings be cancelled of record, and be set aside as fraudulent and void; that the said plaintiff’s title be quieted in them; and that the plaintiff’s have judgment for their costs and disbursements, together with such damages as the court may find that the plaintiff’s have suffered by reason of the fraudulent conveyance and actions of the defendants.

It is contended by the appellants that the plaintiff the First National Bank of Charles City, is not shown to have any interest in the said quarter section of land the title to which was sought to be quieted by the first cause of action, and could not, therefore, be joined with the plaintiff in the said cause of action. It will be observed from the allegations in the first cause of action that the plaintiff case claimed to be the owner of the quarter section described in that cause of action, and that the defendants, and each of them, claimed an estate or interest in and to the said land adverse to the plaintiff. Section 144 of the Code of Civil Procedure provides: “The plaintiff may unite in the same complaint several causes of action, … but the causes of action so united must all belong to one” of the classes specified, and except in actions for the foreclosure of mortgages “must affect all the parties to the action.” And Mr. Pomeroy, in his work on Remedies and Remedial. Rights, says: “The causes of action must not only affect all the defendants, but all the plaintiffs as well, the...