Taylor v. Bank of Volga

• Citation: 9 S.D. 572,70 N.W. 834
• Parties: TAYLOR v. BANK OF VOLGA et al. (NICKEUS, Intervener).
• Decision Date: 06 April 1897
• Court: Supreme Court of South Dakota

9 S.D. 572

70 N.W. 834

TAYLOR

v.BANK OF VOLGA et al. (NICKEUS, Intervener).

Supreme Court of South Dakota.

April 6, 1897.

Appeal from circuit court, Beadle county; A. W. Campbell, Judge.

Action by Maris Taylor, receiver of the Fidelity Fire Insurance Company, against the Bank of Volga and another, to recover certain securities. Johnson Nickeus intervened, by leave of court, claiming an interest in one of said securities adverse to both parties, and from a judgment for intervener the defendants appeal. Affirmed.T. H. Null, for appellants. H. C. Hinckley, for respondent.

FULLER, J.

Plaintiff, the receiver of the Fidelity Fire Insurance Company, an insolvent corporation, brought this action in that fiduciary capacity to recover certain securities from the possession of the defendant the Bank of Volga, a corporation, and William Fisher, the vice president, general manager, and exclusive stockholder thereof, which it is alleged are the property of the insurance company, and were delivered to the Bank of Volga by the secretary of the company without any authority or consideration, but with the full knowledge of the defendant bank, pursuant to a collusive and fraudulent agreement entered into by and between said secretary and the defendant Fisher for the sole purpose of enabling the latter to avoid the payment of a large amount of money justly due from said Fisher to the insurance company. Among the securities and bills receivable, specifically described in the complaint, and which plaintiff seeks to recover, is a promissory note for $5,000, secured by a mortgage on real property, executed and delivered to the Fidelity Fire Insurance Company by the intervener, John Nickeus, on the 11th day of June, 1889, in settlement for certain shares of the capital stock of said corporation. Apparently after issue was joined, Nickeus, the maker of the $5,000 note and mortgage, claiming an adverse interest therein, and the right of immediate possession thereof as against the plaintiff and both defendants, filed by leave of court a pleading in intervention, to recover the possession of the same, under which evidence might properly be introduced sufficient to show, in legal effect, that he was induced to purchase the shares of stock and execute the note and mortgage in question by means of the grossly false, deceptive, and fraudulent statements and representations made on the part of the company and by the defendants in this action concerning the financial condition of said corporation, and that immediately upon learning the true state of affairs, and long before the company went into the hands of a receiver, he rescinded said contract, by...