State v. Mellette

• Decision Date: 26 November 1902
• Parties: STATE v. MELLETTE.
• Court: South Dakota Supreme Court

16 S.D. 297

92 N.W. 395

STATE

v.MELLETTE.

Supreme Court of South Dakota.

Nov. 26, 1902.

Appeal from circuit court, Codington county; Julian Bennett, Judge.

Action by the state of South Dakota against Margaret W. Mellette. Judgment for plaintiff, and defendant appeals. Reversed.George W. Case and C. X. Seward, for appellant. John L. Pyle, Atty. Gen., for the State.

HANEY, P. J.

This is an action to determine adverse claims to certain real property located in Codington county. Plaintiff alleges that it owns and is entitled to possession of the premises, but that the defendant is in possession under claim of title. Defendant admits being in possession, denies plaintiff's ownership, alleges ownership in herself, and avers that the state is estopped from claiming any interest in the premises by reason of the passage of a certain joint resolution by the legislature in 1897. The evidence discloses: That defendant, who then owned the property, conveyed the same, her husband joining in the conveyance, to W. W. Taylor, on January 19, 1893, to secure a note previously given by her husband to Taylor for $15,200, upon which she was surety. That, while this conveyance was absolute in form, it was in fact a mortgage; that W. W. Taylor, who was state treasurer, and upon whose official bond the defendant's husband was a surety, defaulted in January, 1895, to an amount exceeding $350,000. That legal proceedings subsequently resulted in a judgment against Taylor and his bondsmen for the amount of such defalcation. That in August, 1895, Taylor delivered to Hon. Coe I. Crawford, then attorney general for the state, the Mellette note, and a quitclaim deed purporting to convey the premises in question, his wife joining in the deed. That when this note and deed were received by the attorney general he had actual notice that the deed from defendant to Taylor was in fact a mortgage. That in December, 1896, the note was transmitted to the defendant by mail, accompanied by the following letter, signed by the attorney general: “Dear Madam: I have the honor herewith to hand you a certain promissory note dated at Watertown, South Dak., Jan. 15, '93, signed by A. C. Mellette and M. W. Mellette, for the sum of $15,200, payable to the order of W. W. Taylor, and due on or before Jan. 15, '94, with interest at 7 per cent. per annum. This note was delivered to the state of South Dakota with certain other property by W. W. Taylor, late defaulting treasurer of South Dakota, on the 5th day of August, 1895. Certain real estate deeded by you and by the Hon. A. C. Mellette to W. W. Taylor was by Taylor deeded to the state. The appraised price of your real estate and that of Hon. A. C. Mellette which could be applied upon the note at the appraised price equaled the appraised value of the note as per indorsement. I therefore, with the consent of the state board of appraisal, have the pleasure of returning this note to you as satisfied.” That when the note was so transmitted to and received by the defendant the following indorsement was on the back thereof: “Aug. 5, 1895. By homestead at Watertown from Margaret W. Mellette, and lots at Lake Kampeska from her, appraised at $5,390, Mitchell lots $400, and bal. paid in real estate taken from A. C. Mellette as per appraised price. W. W. Taylor.” That defendant received the note and accompanying letter, and retained the same, without objection, until after this action was commenced; and that the defendant has not orally or in writing conveyed or relinquished any of her rights in and to the property in controversy. As the conveyance from defendant to Taylor, though absolute in form, was in fact a mortgage, and that fact was known to the attorney general when the note it secured was received, the state clearly became the assignee of the mortgage, so far as defendant's rights are concerned. The deed from defendant to Taylor conveyed no title. It did not give Taylor possession or the right to possession. It merely created a lien. Association v. Dowling, 10 S....