Murphy v. Plankinton Bank

• Decision Date: 29 August 1900
• Citation: 83 N.W. 575,13 S.D. 501
• Parties: ANNIE B. MURPHY, Plaintiff and appellant, v. PLANKINTON BANK et al. Defendant and respondent.
• Court: South Dakota Supreme Court

13 S.D. 501

83 N.W. 575

ANNIE B. MURPHY, Plaintiff and appellant, v. PLANKINTON BANK et al.

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Melvin Grigsby, William H. Lyon,

Geo. T. Blackman, and Sioux K Grigsby

Attorneys for appellant.

T. B. McMartin, A. B. Kittredge

Attorneys for respondents,

Opinion filed August 29, 1900

CORSON, J.

This is an action to quiet title to a tract of farm land in McCook county. Judgment for the defendants, and the plaintiff appeals. The case was tried by the court without a jury. The court found, in substance, as follows: That on the 24th day of May, 1893, Frederick T. Day, of Milwaukee, Wis., was the owner in fee of the land described in the complaint; that on the 2d day of June 1893, Melvin Grigsby commenced an action in the circuit court of Minnehaha county against said Day, and in said action attached the property described in the complaint in this action, and on the 3d day of June, 1893, duly filed for record in the office of the register of deeds of McCook county a notice of the pendency of the action; that the subsequent proceedings of the action of Grigsby against Day resulted in a judgment for said Grigsby, which said judgment was regularly filed and docketed on the 12th day of October, 1895; that under and by virtue of said judgment the land in controversy was sold at execution sale, and on the 6th day of December, 1895, a certificate of sheriff’s sale was duly issued to said Grigsby, who was the purchaser at said sale; that said sheriff’s certificate was assigned by said Grigsby to William H. Lyon, and thereafter, on the 30th day of December, 1896, a sheriff’s deed was issued to said Lyons, and duly recorded in the register of deeds’ office in McCook county; “(6) that on the 4th day of October, 1897, the said William H. Lyon and his wife, for a valuable consideration, duly executed, acknowledged, and delivered to the plaintiff, Annie B, Murphy, a deed to the land described in the complaint.” The court further finds that the defendant, the Plankinton Bank, was a corporation duly organized and existing under and by virtue of the laws of the State of Wisconsin; that on the 1st day of June, 1893, said bank duly assigned all of its property to the defendant William Plankinton for the benefit of its creditors, and that said Plankinton duly qualified and entered upon the discharge of his duties as assignee; that on the 24th day of May, 1893, said Frederick T. Day and wife made, executed, duly acknowledged, and delivered to the said defendant bank an instrument purporting to be an absolute deed to the property in controversy, which said instrument, on the 12th day of June, 1893, was duly recorded in the office of the register of deeds of McCook county; that on the 24th day of May. 1893, said Day was the president of the defendant bank, and was justly indebted to said bank in a sum exceeding $175,000, and that he executed and delivered the instrument above described, together with other deeds in like form, conveying a large quantity of lands in the states of South Dakota, North Dakota, Minnesota and Wisconsin, for the purpose of securing the payment of all his said indebtedness to the said bank, and for no other consideration; that of said indebtedness of said Day to said bank a sum of not less than $175,000 remains due and unpaid; that the plaintiff herein made no offer to redeem, and no tender. The court concludes as matter of law:

“First. That the instrument set forth in finding number eight is a mortgage, and is a valid and subsisting lien upon the premises described in plaintiff’s complaint securing the payment of the indebtedness mentioned in the foregoing findings of fact; and such lien of said defendants is superior to the right, title and interest of the plaintiff in said premises. Second. That, subject to the lien of the defendants’ said mortgage, plaintiff is the owner of said premises. Third. Let a judgment be entered in favor of the defendants, with costs and disbursements.”

Judgment was accordingly entered in favor of the defendants. The findings of fact by the court in reference to the execution of the deed by Day and wife to the defendant bank and the indebtedness of Day to the bank were excepted to, and a motion for a new trial was made, one of the grounds of which was that the evidence was insufficient to justify the findings.

The appellant contends: (1) That as the deed from Day to the bank was in fact a mortgage, and was recorded in the book of deeds, it did not give constructive notice; (2) that the deed being in fact a mortgage, and it being agreed between the parties that it should be kept from record to protect the credit of Day, it was fraudulent as to creditors; (3) that the rule established by this court in Roblin v. Palmer,(1896), that an unrecorded deed is good as against an attaching creditor, does not apply to an unrecorded mortgage; (4) that the deed being in fact a mortgage, and the consideration being “$1. and other valuable consideration,” it was void, as to other creditors, for uncertainty; (5) that the conveyance was purely voluntary, and as such void as to creditors; (6) that the delivery of the deed to the bank of which Day was president, and the placing of the same in the bank vault, was not a good delivery of the deed; (7) that it was error for the court to find that the deed was a mortgage, and as such was a valid and existing lien superior to the, title of the plaintiff, under the pleadings, without an amendment of the same.

Before proceeding to discuss the case upon the merits, we will refer to a question of practice raised by the respondents which is that the sixth finding of fact is not supported by the evidence. The respondents are not in a position to raise this question, for the reason that they made no motion for a new trial. A party who claims that the findings are not supported by the evidence should move for a new trial upon that ground, and, if the same is denied, he may take an appeal to this court from the order denying such motion; otherwise, he is concluded by the findings. The adverse party may also appeal. We have no such proceeding in our practice as a cross assignment of error unless based upon a proper motion for a new trial, and an appeal from the order denying the same. In Hayne, New Trial; § 244, that learned author says:

“Findings are conclusive if not attacked in the mode prescribed by the statute. In the early history of the court it was supposed this rule did not apply to equity cases. It was at that time supposed that, as under the old chancery practice, an appeal took up the whole case, and that the appellate court examined the evidence as if it were a court of original jurisdiction. But this theory was soon exploded, and the rule that findings were conclusive in all cases unless attached in the modes pointed out by the statute became well settled.”

In our view of the case however, this finding is not very material, as it omits one essential qualification contained in the statute. Section 4350, Comp. Laws, provides:

“The fact that a transfer was made subject to defeasance on a condition may, for the purpose of showing such transfer to be a mortgage, be proved, except as against a subsequent purchaser or incumbrancer, for value and without...