Murphy v. Plankinton Bank

• Decision Date: 01 November 1905
• Parties: MARY C. MURPHY, Plaintiff and appellant, v. THE PLANKINTON BANK, William E Plankinton, Assignee, Defendants and respondents.
• Court: South Dakota Supreme Court

20 S.D. 178

105 N.W. 245

MARY C. MURPHY, Plaintiff and appellant, v. THE PLANKINTON BANK, William E Plankinton, Assignee,

Defendants and respondents.

South Dakota Supreme Court

Hon. Joseph W. Jones, Judge

Appeal from Circuit Court, Minnehaha County, SD

On rehearing-Former opinion modified

Grigsby & Grigsby; Davis, Lyon & Gates

Aikens & Judge, Sioux Falls

Attorneys for appellant.

Rogde & Winans,

James F. Trottman, James G. Flanders

Attorneys for respondents.

Opinion filed Nov. 1, 1905

(See 18 SD 317, 100 NW 614)

FULLER, P. J.

This appeal now before us on rehearing is from an order granting defendants leave to serve and file an amended answer and counterclaim to the complaint in an action instituted in ‘January, 1898, to quiet title to 1200 acres of land in Minnehaha county. As all the facts and circumstances pertaining to this and a number of similar cases submitted herewith on appeal and arising from the same transactions are fully stated in Murphy v. Plankinton Bank,(1900); Lyon v. Plankinton Bank,(1902), and recapitulated in our former decision of this appeal reported in 18 SD 317, 100 NW 614, no facts need now be stated other than such as are deemed essential to the inquiry whether the order granting the amendment is within judicial discretion. In their original answer and throughout all litigation in the circuit court and on appeal previous to the amendment, the defendants claimed fee-simple ownership under a quitclaim deed from Frederick T. Day and wife bearing date May 24th, 1893, which they always knew or ought to have known, was given under suspicious circumstances to secure an existing indebtedness to the defendant bank and intended to operate as a mortgage. It was so determined from the undisputed evidence admitted at the trial without objection and concurred in on appeal to this court as early as March 1st, 1902, when a judgment in favor of the defendants was reversed and a new trial ordered for the sole reason that the court below failed to find whether such instrument was made with an intent to delay or defraud creditors. Lyon v. Plankinton Bank, supra.

Concerning what was done after the remittitur from this court was transmitted to the court below we deem it convenient to quote from the opinion, now receiving renewed consideration as follows:

“In February, 1903, the defendants, on motion, obtained the order appealed from, permitting the filing and substitution of the amended answer. In the original answer of the defendants, they denied the plaintiff’s claim of title and ownership, and alleged that the Plankinton Bank, a corporation, was the owner in fee of the property described in the complaint. The amendment to the answer filed by leave of the circuit court withdraws the defendants’ claim of fee-simple title, alleges as a new defense that the plaintiff obtained the title without consideration, and by virtue of an assignment of a sheriff’s certificate of sale upon a judgment obtained by Melvin Grigsby against Frederick T. Day, and that on March 1st, 1893, long prior to such judgment and sale thereunder, said Grigsby had assigned his claims against the said Day to the defendant bank as collateral security to a promissory note given by the said Grigsby to the defendant bank for a sum upwards of $7,000, and that the defendant bank is still the owner and holder of said claims, and by virtue thereof a holder of a lien upon the property superior to the title of the plaintiff, and that the...