145 N.W. 551 | S.D. | 1914
It appears from the record -that Wayne" & Hil.liard- executed and delivered to' respondent their certain promissory note for $2,000 for borrowed money, that before respondent would make said loan and accept said note it required Wayne & .Hilliard to secure a personal guaranty of the payment, and that in pursuance thereof appellant executed and signed the following guaranty indorsed upon the back of said note: “For value received, I hereby guarantee the payment of the within note, and consent to any extension of time of payment or • any renewals of .this ¡note, and waive demand, protest, and nonpayment thereof.” Respondent, claiming that the makers of said note have wholly failed to pay the same, or any part thereof, after demand, brought this suit to recover from appellant the amount of principal and interest due on said note under said written contract of guaranty. Appellant contends that, at the time of the transaction of the giving of said note, and the signing of said guaranty, it was agreed between respondent, said Wayne & Hilliard, and appellant, as ,a part of said transaction, that respondent should take from said .makers of said $2,000 note mortgages upon certain real and personal property, owned by said makers of said note, securing the payment thereof, and which real and personal property so agreed to be mortgaged was more than sufficient to satisfy said note, and that respondent failed and neglected to take said mortgages securing said note, and that appellant, after discovering tsuoh failure, demanded that respondent secure such mortgages, or release him from said, guaranty. On the other hand, respondent claims that, ,at the time said $2,000 note was given,. said ..'YVay-ne & Hilliard were also indebted to respondent in the sum of $3,000, evidenced by a promissory note, and that the agreement was, between the maker-s of said notes, appellant .and respondent,
We are of the view that the latter -part -o-f this instruction, which cast u-p-o-n defendant the burden of showing that said deed and bill of sale were transfers of absolute title, was erroneous and highly prejudicial to. defendant. ' When defendant had offered in evidence the deed and bill of -sale purporting to -convey absolute title, and had produced as a witness one of the grantors of said deed and bill of sale, who testified and said instruments were executed and delivered by him in settlement of the notes and mortgages, which deed and bill of sale settled the transaction so far as the -mortgagors were -concerned, this made out and constituted a strong' and -complete prima facie defense in favor of defendant, and t-he burden- of proof, on this issue, then shifted to plaintiff to -.show by clear and -convincing- proof 'that said instruments were not in fact absolute transfers of title.
The judgment and.order appealed from are reversed, and the cause remanded for new trial.