First State Bank of Summit v. Braden

• Citation: 39 S.D. 53,162 N.W. 929
• Decision Date: 26 May 1917
• Docket Number: No. 3992.,3992.
• Parties: FIRST STATE BANK OF SUMMIT v. BRADEN.
• Court: South Dakota Supreme Court

39 S.D. 53

162 N.W. 929

FIRST STATE BANK OF SUMMIT

v.BRADEN.

No. 3992.

Supreme Court of South Dakota.

May 26, 1917.

Appeal from Circuit Court, Roberts County; Thomas L. Bouck, Judge.

Action by the First State Bank of Summit against Mary Braden, in which defendant, as administratrix, interposed an answer as intervener. From judgment for intervener, plaintiff appeals. Affirmed.Batterton & Bunde and Howard Babcock, all of Sisseton, for appellant.

E. J. Turner and Frank R. McKenna, both of Sisseton, for respondent.

WHITING, J.

Action for possession of personal property; judgment in favor of intervening defendant; appeal from judgment and from an order denying a new trial.

The following are the facts material to the questions presented on appeal: One B. died, leaving a widow and several minor children. He was indebted to appellant bank. After his death his widow gave her individual note to take up the notes evidencing such indebtedness. She secured said note by a chattel mortgage covering personal property belonging to the estate of deceased. She was subsequently appointed administratrix of such estate. Subsequent to such appointment this action was brought to obtain the possession of the mortgaged property for purpose of foreclosure. Appellant took possession of the property mortgaged through proceedings in claim and delivery and foreclosed the mortgage, foreclosure sale being had prior to any answer herein. The widow, answering, admitted the giving of the note and the mortgage, but alleged that the property in question belonged to the estate and that at the time of the commencement of this action she was in possession of the same as administratrix of such estate. By leave of court she, in her representative capacity, interposed an answer as intervener wherein she sought the return of the property or the value thereof if return could not be had. Appellant alleged the property to be worth $425. Respondent alleged same to be worth $500. The deceased died possessed of but $600 worth of personal property. There is no evidence that the original notes were in any manner secured; and there is no evidence that the deceased left any unexempt real estate.

[1][2][3] The widow was a witness and testified in relation to the ownership of the property. Her testimony was objected to upon the ground that she was estopped from testifying to facts inconsistent with the warranties contained in the mortgage she gave to appellant. Appellant concedes the law to be that an administrator's title to property is an official title which ordinarily cannot be affected to the prejudice of the estate by any acts of such administrator prior to his appointment as administrator, and also concedes that there can arise no estoppel growing out of the acts of the administrator as an individual which will affect the title of the administrator in property of the estate except in cases where such estoppel is based upon and can be supported by equities against the estate. This is clearly the law. Gilkey v. Hamilton, 22 Mich. 283. But appellant contends that, even though the administratrix may not have been estopped to claim possession of this property, yet she was estopped as a witness from disputing the title she purported to convey by the mortgage, that:

“In matters of estoppel there is a clear distinction between the law of property and the law of evidence.”

Appellant has cited no authority in support of such novel proposition, and we apprehend that none can be found. It certainly would be an anomalous situation if one who had a right to sue or defend in a representative capacity, whose right of action or ground of defense rested upon a claim of title to certain property, who was not estopped from so suing or defending, and who was in every other respect a qualified and competent witness competent to testify to the title of such property, would be estopped from telling the truth in relation to such title simply because at some time he or she had made a declaration in writing which was...