Royal Union Life Ins. Co. v. Boynton

• Decision Date: 31 December 1928
• Docket Number: 6685
• Citation: 222 N.W. 596,54 S.D. 85
• Parties: ROYAL UNION LIFE INS. CO., Respondent, v. ELMER E. BOYNTON et al, Appellant.
• Court: South Dakota Supreme Court

54 S.D. 85

222 N.W. 596

ROYAL UNION LIFE INS. CO., Respondent,

v.

ELMER E. BOYNTON et al, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Gregory County, SD Hon. J. R. Cash, Judge #6685—Reversed W. T. Wills, Butte, Neb., W. J. Hooper, Gregory, SD Attorneys for Appellants. Windsor Doherty, Winner, SD Attorney for Respondent Opinion Filed Dec 31, 1928

MISER, C.

Respondent insurance company is the assignee of a real estate mortgage on lands owned by appellant. In an action brought to foreclose this mortgage, respondent obtained an order appointing a receiver for the mortgaged premises. The trial court found that the mortgage debt was $23,416, and that the mortgaged property did not exceed in value the sum of $21,000. Appellant contends that the value of the mortgaged premises exceeds the amount of the mortgage indebtedness, and that this contention is supported by the great preponderance of the evidence presented to the trial court. The only evidence presented to the trial court was the affidavits which appear in the record before us.

It is therefore the duty of this court to review the evidence “unhampered by the rule that a trial judge, who has observed the demeanor of the witnesses, is in a better position to intelligently weigh the evidence than an appellate court.” Fairmont & v. Ry. Co. v. Bethke, 159 N.W. 56; Smith v. Hart, 46 ALR 811.

The evidence as to the value, which was introduced by respondent, consisted of an allegation in the complaint, verified on information and belief by respondent’s attorney, that the value did not exceed the sum of $21,000, and five affidavits which may be summarized thus: Stanek says he is well acquainted with the land, knows its value, and that it does not exceed $20,183.80. Wiebelhaus makes an identical statement. Slocum says he is well acquainted with the land; 400 acres is either hilly or unfit for cultivation and worth not over $10 an acre; the buildings are in a dilapidated condition; and the balance of the land is worth about $40 an acre. The auditor of Gregory county states the assessed valuation of the mortgaged premises for the year 1927 is $19,721. Schewman says that he rents part of said land and G. H. Goedel rents the balance; the buildings are out of repair; half of the land is worth about $40 an acre and the other half not over $10 an acre; the value of improvements on the land rented by him is not over $1,500; on the land rented by Goedel not over $1,200.

The affidavits on behalf of appellants may be summarized thus: Honke, a banker at Butte, Neb., is well acquainted with the land and with land values in Gregory county. The two farms aggregate 776 acres. The improvements on the Goedel tract consist of a 5-room frame house, a frame barn 24x30 with shed attached, a hogshed 12x16, and a machine shop, all well built and in good repair, frame chicken house, flowing well furnishing an abundant supply of pure water, abundant timber, soil of heavy black loam with first-class pasture, and a first-class road to the railroad town of Fairfax, 12 miles distant. The improvements on the Schewman tract are a frame house of 6 rooms and bath, frame barn, two small chicken houses, all well built, icehouse of 40 ton capacity, corncribs and other outbuildings. Both tracts, fenced and cross-fenced, with improvements, are worth $38,800. J. H. Meyhaus, banker at Bonesteel, C. F. Auerswald and Chas. Mashek, stockmen at Fairfax, Emil Nachtigal and Fred Bentz, farmers at Fairfax, John Ellerman, banker at Fairfax, all in Gregory county, Edgar R. Johnson, banker in the adjoining county of Boyd, Neb., engaged in the farm loan business, Sol Fried, executor of the estate of a former owner of the land, all make similar statements as to qualifications to testify as...