Hardin v. Graham
| Decision Date | 13 November 1916 |
| Docket Number | 3932. |
| Citation | 159 N.W. 895,38 S.D. 57 |
| Parties | HARDIN v. GRAHAM et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lawrence County; James McNenny, Judge.
Action by James D. Hardin against Walter E. Graham and others. Judgment for defendants, and order denying new trial, and plaintiff appeals. Reversed, with directions.
D. M Vinsonhaler and E. C. Strode, both of Omaha, Neb., John H Rogers, of Alexis, Ill., and Howard G. Fuller, of Pierre, for appellant.
Ogden & Ogden, of Deadwood, for respondents.
This cause was before this court upon preliminary motions and an opinion was rendered, which is referred to for further particulars, viz., 36 S.D. 525, 155 N.W. 782. Upon the transmission of the record to the trial court that court declined to find that the record had actually been settled at the time of the hearing of the motion for a new trial. We are therefore of the opinion that the only portions of the record that are before us and that we can consider are such as would be before us, and such as we could consider, had the appeal been taken solely from the judgment. We are therefore limited to a consideration of whether the judgment is warranted by the pleadings and the findings of fact.
The matter in dispute relates to the ownership and right of possession of the mining properties of the Branch Mint Mining & Milling Company. Reference is made to Phillips v Branch Mint Mining & Milling Co., 27 S.D. 350, 131 N.W. 308; Hardin v. Union Trust Co., 191 F. 152, 111 C. C. A. 632; Hardin v. Union Trust Co., 226 U.S. 606, 33 S.Ct. 111, 57 L.Ed. 379, for a more complete understanding of the case. The decision in the Phillips Case resulted in the establishment of the miners' liens as first liens upon the property.
On September 4, 1909, Hardin became the owner of the equity of the mining company in the property by virtue of a receiver's deed issued under receivership proceedings in the state court in the Phillips Case.
Long prior to the lien claims and the claim of Hardin, the mining company had mortgaged the property to the Union Trust Company as trustee for the purchasers of a bond issue. In February, 1910, the trustee began foreclosure suit in the then United States Circuit Court for the district of South Dakota, to which Hardin was a party. On July 27, 1910, judgment was entered decreeing foreclosure of the mortgage, which judgment was affirmed in the United States Circuit Court of Appeals decision above referred to, and a writ of certiorari was denied in the United States Supreme Court decision above referred to. From a sale under foreclosure of the miners' liens in the Phillips Case, the Union Trust Company became a redemptioner and obtained redemptioner's deed on January 8, 1912. It thereafter deeded the property to John Stokes Adams, who in turn deeded it to Graham on March 24, 1913. The money for such redemption was advanced to the Trust Company by Graham, one of the bondholders. It is conceded by the parties that the certificate of sale under the miners' lien foreclosure was the paramount lien on the property.
During the pendency of the foreclosure suit in the federal court two receivers were appointed by that court to take charge of the property, and an order for the sale of the property was made to satisfy certain receivers' certificates issued during the pendency of said suit. (The receivers hereinafter referred to in this opinion are these receivers and not the receivers in the state court hitherto referred to.) Graham obtained a receivers' certificate for the money advanced by him to the trust company to effect the redemption from the Phillips lien sale. At the receivers' sale held on February 5, 1913, Graham became the purchaser, and in satisfaction of his bid of $20,552.64 turned over receivers' certificates (including the above-mentioned certificate), aggregating $20.472.92, and paid the remainder of his bid in cash. Such sale was by the order of the federal court made without the right of redemption. It was confirmed and a receivers' deed was issued to Graham, which was filed for record in March, 1913. On June 12, 1913, Hardin tendered Graham the sum of $21,844.20, and served upon him a notice of redemption from said receivers' sale, which tender was refused. Thereupon Hardin brought this action, the purpose of which was in general to have the court adjudge that he had effected a redemption from the sale made by the receivers on February 5, 1913. The trial court concluded that such receivers' sale and deed were valid, and that Hardin's tender was ineffective because he had no right to redeem, and judgment was entered declaring Graham to be the owner of the property. From the judgment and an order denying a new trial Hardin has appealed, but, as we have hitherto shown, we must disregard the appeal from the order denying a new trial.
By section 189, C. C., it is provided:
"Sluice boxes, flumes, hose, pipes, railway tracks, cars, blacksmith shops, mills, and all other machinery or tools used in working or developing a mine, are to be deemed affixed to the mine."
These things are considered to be real property. The important question in this case is, therefore, whether the federal court had authority to authorize the receivers to sell real property without the right of redemption.
Many decisions so hold where the property consists both of real and personal property, and it is not feasible to sell the different kinds of property separately, or where the purpose of the suit is the winding up of the affairs of an insolvent corporation. Hammock v. Farmers' Loan & Tr. Co., 105 U.S. 77, 26 L.Ed. 1111; Nat. Foundry & Pipe Works v Oconto Water Co. (C. C.) 52 F. 43; Oconto Water Co. v. Nat. Foundry & Pipe Works, 59 F. 20, 7 C. C. A. 603; McKenzie v. Bismarck Water Co., 6 N. D. ...
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