Swenson v. Swenson

• Decision Date: 29 December 1903
• Citation: 97 N.W. 845,17 S.D. 558
• Parties: SWENSON v. SWENSON et al.
• Court: South Dakota Supreme Court

97 N.W. 845

17 S.D. 558

SWENSON v. SWENSON et al.

Supreme Court of South Dakota

December 29, 1903

Appeal from Circuit Court, Brookings County; Julian Bennett, Judge.

Action by Betsey M. Swenson against Swen Swenson, John C. Jenkins and others. From an order overruling defendant Jenkins' demurrer to the complaint, he appeals. Affirmed.

Philo Hall and J. C. Jenkins, for appellant. Bailey & Voorhees and Wells & Blackman, for respondent.

HANEY P. J.

This action was instituted for the purpose of having it decreed that defendant Swen Swenson holds title to a certain half section of land in Brookings county in trust for the plaintiff; that John Swenson has no interest therein; that a certain conveyance of part of the land to defendant Jenkins is void; and that plaintiff owns the premises in fee, free from any and all claims of the defendants. It is before us on an appeal from an order overruling defendant Jenkins' demurrer to the complaint, the pertinent allegations of which are thus stated in his brief: "That on December 7, 1895 defendant John Swenson, being over $5,000 in debt to the Equitable Loan & Trust Company, gave it a warranty deed to the east half of Sec. 33--109--51, to secure said debt, and thereafter agreed with plaintiff, his wife, that he 'should convey to' her the mortgaged property, and she 'should assume and pay' said debt; that she paid a part of the debt, and then, for the purpose of raising the balance, said company gave a warranty deed of the land to Manda Elverud, a daughter of plaintiff, and John Swenson, who thereupon, her husband joining, remortgaged the property to said company to secure the balance of the debt, and then gave a warranty deed of the land to plaintiff, who, 'for the purpose of paying' said mortgages, 'executed and delivered a certain warranty deed of said premises to the defendant Swen Swenson,' who in turn mortgaged the land to the Phoenix Mutual Life Insurance Company, and from the proceeds paid off the Manda Elverud mortgage; that Manda Elverud is a minor, 17 years of age, and never had any interest in the property, but held the same in trust for plaintiff, and 'that the said conveyance from plaintiff to Swen Swenson was made to said defendant merely in trust and that the defendant Swen Swenson holds the title to said premises in trust for plaintiff'; that thereafter defendant John Swenson executed a warranty deed of the south half of said land to John C. Jenkins, who took said deed with full knowledge of all the facts."

Do the facts alleged in the complaint show that defendant Swen Swenson acquired title to the property in trust for the plaintiff? It is alleged that the plaintiff, for the purpose of paying certain mortgages thereon, made, executed, and delivered a certain warranty deed of the premises to him that thereupon he made, executed, and delivered a certain mortgage thereon; that with the proceeds of such mortgage the...