Lyon v. Plankinton Bank
Decision Date | 01 March 1902 |
Citation | 89 N.W. 1017,15 S.D. 400 |
Parties | LYON v. PLANKINTON BANK et al. |
Court | South Dakota Supreme Court |
Appeal from circuit court, Minnehaha county.
Action by William H. Lyon against the Plankinton Bank and another. From a judgment for defendants, plaintiff appeals. Reversed.
Davis Lyon & Gates and Grigsby & Grigsby, for appellant. A. B Kittredge and E. R. Winans, for respondents.
It is alleged in the complaint in this action that the defendant bank is a corporation under the laws of Wisconsin; that on June 1, 1893, the defendant bank assigned all of its property for the benefit of its creditors to the defendant William Plankinton, who thereupon qualified and entered upon the discharge of his duties as assignee; that the plaintiff is the owner of certain realty in Minnehaha county; that defendants unjustly claim an estate or interest therein adverse to the plaintiff; that defendants' claim is without any right whatever; and that they have no estate right, title, or interest in the described realty, or any part thereof. Defendants deny all the allegations of the complaint except the incorporation of the defendant bank and the receivership of the defendant William Plankinton, and allege that on May 24, 1893, F. T. Day, who was then the owner in fee of the land described in the complaint, conveyed the same (his wife joining) for a good and valuable consideration, to the defendant bank, by deed duly executed and acknowledged, and recorded in the office of the register of deeds of Minnehaha county; that afterwards, on June 1 1893, the bank made an assignment, under the laws of Wisconsin, for the benefit of its creditors, to the defendant William Plankinton; that the defendants are the owners in fee of the premises; and they demand that the complaint be dismissed, with costs. The action was tried by the court without a jury. It was admitted that on May 24, 1893, and prior thereto, the premises in controversy were owned by F T. Day. The plaintiff proved that on June 2, 1893, one Melvin Grigsby commenced an action in his favor against Day, and on that day attached the premises; that on the same day he caused a notice of the pendency of his action to be recorded in Minnehaha county; that Grigsby recovered and docketed a judgment in such action for $21,128.94, on November 23, 1894; that execution was issued thereon, and the premises in controversy were sold thereunder on December 28, 1895; that such sale was duly confirmed; that a sheriff's certificate of sale issued to him was recorded January 27, 1896; that on January 27, 1896, such certificate was assigned to the plaintiff for $9,000; that a sheriff's deed was duly executed, acknowledged, and delivered to the plaintiff on December 30, 1896; and that such deed was recorded February 16, 1897. Defendants proved the execution of a deed absolute in form from Day and wife to the defendant bank, acknowledged May 24th, and recorded June 23, 1893, which, for the purposes of this appeal, will be regarded as describing the land in dispute. F. T. Day, called by the plaintiff in rebuttal, testified, without objection, as follows: Defendants read in rebuttal from the deposition of A. E. Fletcher, taken on their own behalf, as follows: None of this testimony concerning the execution of the deed from Day to the bank was contradicted. At the conclusion of the trial the plaintiff requested the court to make the following, among other, findings of fact: "(12) That it was agreed when these deeds [from Day to the bank] were executed that said Day should go on and handle and dispose of the lands described in the deeds the same as before the instruments were given; (13) that at the same time it was agreed that said deeds should not be recorded, for the reason that the recording of the deeds would ruin the credit of said Day; (14) that the aforesaid agreement, and the withholding of said deeds from record in pursuance thereof, was intended to hinder and delay the creditors of said Day, and was fraud upon them." This request was denied. The court found "that on May 24, 1893, the said Day was president of said bank, and was then justly indebted to said bank in a sum exceeding $175,000; that he executed and delivered said instrument, together with other deeds in like form conveying large quantities of land, for the purpose of securing the payment of all his indebtedness to said bank, and for no other consideration; that said indebtedness, amounting to not less than $175,000, remains due and unpaid"; and concluded, as matters of law, "(1) that said instrument is a mortgage, and a valid and subsisting lien upon said premises, securing the payment of said indebtedness; and such lien...
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