Richards Trust Co. v. Rhomberg

• Decision Date: 12 July 1905
• Citation: 19 S.D. 595,104 N.W. 268
• Parties: RICHARDS TRUST COMPANY, Plaintiff and respondent, v. JULIA RHOMBERG, Defendant and appellant.
• Court: South Dakota Supreme Court

19 S.D. 595

104 N.W. 268

RICHARDS TRUST COMPANY, Plaintiff and respondent,

v.

JULIA RHOMBERG, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. Chas. S. Whiting, Judge Reversed Wood & Fairbank Attorneys for appellant. Crawford & Taylor Attorneys for respondent, Opinion filed July 12, 1905

CORSON, P. J.

In 1883 F. T. Walker and Dominic Rhomberg, were partners engaged in the loan and investment business having their principal office at Dubuque, Iowa. During that year they made a loan to one William Bennett, for $400, taking a note therefor secured by a mortgage on a quarter section of land in Beadle county, in this state. The note and mortgage, as was the custom with that firm, was taken in the name of Walker. In 1884 the note and mortgage were assigned to one Kelly, and subsequently within a short time thereafter were reassigned, leaving the name of the payee of the note and the assignment in the mortgage blank. Subsequently, in 1888, the defendant having received $450 from an estate in Germany, authorized her husband, Dominic Rhomberg, to invest the same, and he did so by transferring the Bennett note and mortgage to her by inserting her name in the blank in the note and her name in the blank in the assignment of the mortgage, he having been authorized to fill these blanks by Kelly upon the reassignment of the mortgage. From that time until 1901 the note and mortgage remained in the possession of Dominic Rhomberg, husband of the defendant, as her agent, and was kept in the vaults of the office of Walker & Rhomberg. In 1901 this assignment of the mortgage was recorded in Beadle county. In 1889 Walker died, leaving all his property to his widow by will. In 1896 Nelly J. Walker, the widow; executed an assignment of this mortgage to John P. Walker, her nephew, signing the same as executrix and sole devisee of the estate of F. T. Walker, deceased. This assignment was recorded on August 20, 1897. At the time assignment was made Mrs. Walker did not have either the note or mortgage in her possession, and neither she nor any assignees subsequently have had said mortgage or note in their possession. The mortgage has been assigned to different parties by separate assignments, and on July 22, 1901, the mortgage was assigned to the plaintiff, and was recorded on the same day. In none of the assignments under which the plaintiff claims title to the mortgage was the note or debt mentioned.

It will thus be seen that the mortgage and note were executed and delivered to Walker & Rhomberg in 1883; that they were assigned and transferred to one Kelley, who subsequently reassigned the mortgage and indorsed the note in bank, giving authority to Rhomberg to fill up the blanks, that in 1888 the note and mortgage were transferred to the defendant, Mrs, Rhomberg, and her name inserted as payee in the note and assignee in the mortgage, and the note and mortgage remained in the possession of her husband as her agent until the mortgage was forwarded to Beadle county in 1901 in order that the assignment might be recorded; that Mrs. Walker, without having the note or mortgage in her possession, and nearly eight years after the same had been transferred to Mrs. Rhomberg, assigned the same to her nephew, without consideration; that he thereafter assigned the mortgage, and it was transferred to various parties, until in 1901 it was assigned to the plaintiff. This action was commenced to quiet the title of the plaintiff and to cancel the assignments of the mortgage to Mrs. Rhomberg, and was subsequently by amendments converted into an action to foreclose the mortgage, and a decree of foreclosure was entered, in which it was recited that, the court having found as conclusions of law that the ownership of said note and mortgage, subject to the equitable interest of the plaintiff in said mortgage to the extent of the amount paid by the plaintiff for said assignment and interest thereon, is in the defendant herein, and that the plaintiff has an equity in said note and mortgage by reason of its clear record title thereto and the negligence of defendant in failing to record her assignment to the extent of the amount paid by plaintiff for said assignment, to-wit, the sum of $240, and interest thereon from July 22, 1901, making the total interest...