Grether v. Smith

Decision Date22 July 1903
Citation17 S.D. 279,96 N.W. 93
PartiesANNA GRETHER, Plaintiff and appellant, v. CHARLES H. SMITH, Defendant and respondent.
CourtSouth Dakota Supreme Court

CHARLES H. SMITH, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. J. H. McCoy, Judge. Reversed John Wood, A. B. Fairbank, Boyce & Warren Attorneys for appellant. T. H. Null Attorney for respondents. Opinion filed July 22, 1903

FULLER, J.

In this equitable action to remove a cloud and foreclose a mortgage on real property, executed by Charles H. Smith and wife on the 11th day of February, 1886, to secure their promissory note for $400, the defendant Riegel, denying plaintiff’s ownership, and claiming to be the lawful assignee of such note and mortgage, prayed for the usual decree of foreclosure, together with judgment against plaintiff for costs and disbursements.

The note offered by plaintiff and received in evidence under the complaint was made payable to the order of F. T. Walker, and indorsed on the back as follows: “Pay Anna Grether or order. F. T. Walker.” The mortgage was also taken in the name of F. T. Walker, as mortgagee, and a duly executed and acknowledged assignment thereof, under date of October 4, 1886, is upon the back of the instrument, as follows: “For value received I hereby sell, assign, and transfer unto Anna Grether all my right, title and interest in and to the within mortgage. F. T. Walker.” When Smith and wife gave this mortgage, and for many years prior thereto, F. T. Walker and D. Rhomberg were co-partners engaged in the real estate and loan business, in the city of Dubuque, under the name of Walker & Rhomberg, and it was a loan of their money to secure the payment of which the note and mortgage were executed. According to their universal custom, and as a matter of convenience in negotiating such securities, all notes and mortgages belonging to the firm were taken in the name of F. T. Walker, who, as the field man, made all loans, while Rhomberg remained at the office and disposed of them to investors. About the time the Smith note and mortgage reached the office of Walker & Rhomberg, they borrowed a large amount of money of Mrs. Berry, and, as collateral security to their note, delivered to her this note and mortgage, together with other securities, which she held until the year 1895, when she received payment in full, and surrendered the securities to Rhomberg.

During the time intervening between the making and payment of the Berry loan, and in March, 1889, F. T. Walker...

To continue reading

Request your trial
8 cases
  • Barbour v. Finke
    • United States
    • South Dakota Supreme Court
    • December 31, 1924
    ...mortgage is merely an incident to the note which it secures. Parker v. Randolph, 5 S. D. 549, 59 N. W. 722, 29 L. R. A. 33;Grether v. Smith, 17 S. D. 279, 96 N. W. 93;Richards Tr. Co. v. Rhomberg, 19 S. D. 595, 104 N. W. 268;Miller v. Berry, 19 S. D. 625, 104 N. W. 311;Emerson-Brantingham I......
  • Barbour v. Finke
    • United States
    • South Dakota Supreme Court
    • December 31, 1924
    ...this jurisdiction that a mortgage is merely an incident to the note which it secures. Parker v. Randolph, 59 N.W. 722, 29 LRA 33; Grether v. Smith, 96 N.W. 93; Richards Tr. Co. v. Rhomberg, 19 S.D. 595; 104 N.W. 268; Miller v. Berry, 104 N.W. 311; Emerson-Brantinkham Imp. Co. v. Ainslie, 16......
  • Emerson-Brantingham Implement Co. v. Ainslie
    • United States
    • South Dakota Supreme Court
    • March 22, 1917
    ...a note secured by a mortgage carries the mortgage with it. Parker v. Randolph, 5 S. D. 549, 59 N. W. 722, 29 L. R. A. 33;Grether v. Smith, 17 S. D. 279, 96 N. W. 93;Miller v. Berry, 19 S. D. 625, 104 N. W. 311;Brynjolfson v. Osthus, 12 N. D. 42, 96 N. W. 261. The order appealed from is ...
  • Emerson-Brantingham Imp. Co. v. Ainslie
    • United States
    • South Dakota Supreme Court
    • March 22, 1917
    ...law of the Dakotas that the transfer of a note secured by a mortgage carries the mortgage with it. Parker v. Randolph, 29 LRA 33; Grether v. Smith, 96 N.W. 93; Miller v. Berry, 104 N.W. 311; Brynjolfson v. Osthus, 96 N.W. The order appealed from is reversed. ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT