20 S.D. 193 | S.D. | 1905
Lead Opinion
This is an appeal by the defendant from the judgment and order denying a new trial. This case was before us at a former term of this court, and the judgment of the lower court was reversed, and the case is reported in 17 S. D. 637, 98 N. W. 166.
As stated in the opinion of the court on that appeal, the case was tried in the court below upon an agreed statement of facts; those deemed material being set forth in the opinion. On the re-mittitur going down, the case was retried, andx in addition to the statement of facts used on the former trial, evidence was introduced on the part of the plaintiff upon which the court found additional facts, which are in substance that the firm of Wilkes & Wells from December 15, 1882, to May, 1890, were the duly constituted and acting agents of the defendant in the business of negotiating loans on real estate in this state, and that in the usual course of their agency they acquired more or less real estate belonging to the defendant and took the title in their own names, and that the title to the property in controversy conveyed by said Wilkes & Wells to the defendant was so held by them as agents and trustees of the defendant ; that in conveying said property to the defendant, the said Wilkes & Wells only intended to convey their interest in said property as trustees, and that the)r executed said conveyance for the purpose of closing up their business with the defendant; that it was not their intention to convey to the said defendant any other interest tiran that so held by them in trust. The court concludes from the agreed statement of facts, and from the additional findings, that the plaintiff was the owner and entitled to the possession of the premises in controversy.
It is contended by the appellant that the findings of the court made in addition to the agreed statement of facts are not supported by the evidence, and there is much force in this contention; hut in the view we take of the case it will not be necessary to decide this
It is contended by the plaintiff that the circumstances attending the conveyance, and the relation existing between Wilkes & Wells and the defendant, might properly be shown for the purpose of proving their intention in making the conveyance, and that the principle to be applied to this case is the same as that applied in proving the circumstances under which a deed given as security for some other act may be shown to be a mortgage; but in our opinion this principle is not applicable to the case at bar. Our code provides that: “Every transfer of an interest in property, * * *■ as security for the performance of another act is to be deemed a mortgage.” A court is therefore fully justified in permitting proof of all the circumstances attending the execution of a deed and the actual intention of the parties for the purpose of determining as to whether or not it was in fact executed and intended to operate as a mortgage. No such authority seems to have been conferred upon the court as to deeds similar to the one in controversy; the same being without limitations or qualifications and free from all ambiguity. Much reliance is placed by the plaintiff upon the case of Consoli
The principal questions involved in this case are so fully discussed in our former opinion that we deem a further discussion of them unnecessary.
The judgment of the court below, and order denying a new trial, are reversed.
Dissenting Opinion
(dissenting). For the reason stated in my dissenting opinion on the former appeal of this case (17 S. D. 650, 98 N. W. 166), I am convinced that the judgment of the court below should be affirmed.