Siems v. Pierre Savings Bank

• Decision Date: 24 August 1895
• Citation: 7 S.D. 338,64 N.W. 167
• Parties: SIEMS, Plaintiff and respondent, v. PIERRE SAVINGS BANK, Defendant and appellant.
• Court: South Dakota Supreme Court

7 S.D. 338

64 N.W. 167

SIEMS, Plaintiff and respondent,

v.

PIERRE SAVINGS BANK, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SD Hon. Loring E. Gaffy, Judge Affirmed Horner & Stewart Attorneys for appellant. John A. Holmes Attorneys for respondent. Opinion filed Aug. 24, 1895

KELLAM, J.

Siems, the respondent, was the owner of real estate in Pierre, upon which the appellant bank held a mortgage with power of sale, The mortgage was regularly foreclosed by advertisement, appellant becoming the purchaser. Subsequently to the purchase, the bank, upon the theory that as such purchaser it was entitled to the rents during the redemption year, under section 5159, Comp. Laws, leased the premises and collected the rents. The bank refusing to pay over to respondent the rents so collected and received by it, he brings this action to recover the same. From a judgment in favor of respondent upon these facts, this appeal is taken.

In Rudolph v. Herman,(1893), this court, the writer of this opinion dissenting, held that said section 5159 “has no application to sales made at a mortgage foreclosure, either by advertisement or by action.” While it is probable that this court as now constituted, would not have so held, still it was the deliberate decision of the court upon a disputed question of law, and as a rule of property, became the law of this jurisdiction. It would be exceedingly unwise now to reagitate it, and possibly reverse our former decision, especially when we could not certainly demonstrate that it was wrong. It is better for all interests to abide by deliberate and final decisions, unless palpably and demonstrably wrong, than to constantly change the same to meet the views and opinions of the individual judges who may happen from time to time to constitute the court. We therefore follow the Rudolph case, and hold that appellant was not entitled by operation of law to the rents from the mortgaged premises during the redemption period. We do this the more readily in this ease in view of the fact that the legislature, by chapter 139 of the Laws of 1893, repealed the said section 5159, under which, only, this and similar claims could or can arise.

Appellant, however, contends that, even under the former opinion of this court, this action cannot be maintained; that an action for money had and received “will not lie by a claimant to a fund against his rival claimant, if that rival claimant received it under a claim of right, and the same was paid to him in recognition of that right, and in denial of any right of the claimant to receive it”; and in support of this claim cites cases like Patrick v. Metcalf, 37 NY 332, and Butterworth v. Gould, 41 NY 463. They were all cases in which it plainly appear that the ‘money sought to be recovered was paid and received with a full knowledge that payment was claimed by adverse and rival parties, the party paying deliberately and voluntarily electing to pay one, to the exclusion of the other, and take his own chances as to further liability to the one not paid. In such case all act understandingly, and each in defiance of the other. If the party so paying pays to the wrong claimant, and is afterwards obliged to pay to the right one, he cannot complain, for he voluntarily assumed to decide for himself who was the rightful claimant. But here the bank leased to tenants’ property which it, and presumably the tenants, supposed it had a right to lease, and collected the rents under such lease. By a subsequent decision of this court, the rights of the parties are declared to be entirely different from what they had been understood to be. It turns out that the bank had no right to control or rent these premises after the sale than before. The possession during the redemption period...