208 N.W. 227 | S.D. | 1926
Plaintiff held a mortgage upon a' quarter section of land in Clark county, executed by Mr. and Mrs. Sogn. ■Reinhart was tenant in possession. The First State Bank of Vienna, of which Sogn was president', was taken in charge by the superintendent of banks in July, 1923. We hereinafter refer to him as the superintendent. In August, 1923,. the Sogns conveyed the land to the bank by a deed delivered to a special examiner in temporary charge of the 'bank under the superintendent. The deed contained a clause to the effect that the grantee, the bank, assumed, and agreed to pay the mortgage. The superintendent gave the statutory notice to creditors of the bank (Rev. Code 1919, § 8933), and the time within which to present claims against the ■bank expired on December 20, 1923, without a claim having been presented on behalf of the bank’s liability under assumption of sa'id mortgage. In February, 1924, plaintiff began an action to foreclose the mortgage, making as parties defendant the Sogns, the tenant, the bank, the examiner in charge, and the superintendent. The complaint contained the following paragraph: ,
“That no personal claim is made in this action against any of the defendants, excepting the defendants A. M. Sogn, Ida M. Sogn, and the First State-Bank of Vienna.”'
The prayer for relief asked for a deficiency judgment against the Sogns and the bank. Except for the matter of the appointment of a receiver, which is considered in the companion case, Hanson v. Sogn, 50 S. D. —, 208 N. W. 228, no- relief was sought against the superintendent or the examiner in charge except to bar their right of redemption. No appearance was made by any of the defendants, and in April, 1924, a judgment of foreclosure was entered, which, after applying the proceeds of the foreclosure sale, resulted in a deficiency judgment of $i;468.85. against the Sogns and the bank. On July 5, 1924, plaintiff presented a proof of claim for such deficiency to the examiner in charge, which was by him rejected. On July 16, 1924, plaintiff brought this proceeding in mandamus to compel the allowance of the deficiency judgment as a general claim against the assets of the bank in the hands of the superintendent. Upon the hearing the ¡alternative writ was made permanent, and the superintendent and examiner were so compelled. From the judgment entered and from an order denying new trial, they appeal.
■ “Any claim not presented at the place or within the time fixed by such notice shall be forever barred.”
The language is extremely plain and unambiguous. If respondent thought he-had a valid claim against the bank under the assumption clause, we can see no reason why he should not have presented it according to law.
Without discrediting the power of a court of equity to relieve a claimant from ,the effect of such' bar in a proper case, the foreclosure action above referred to was not brought in whole or in part for such relief, nor did the judgment purport to provide for such relief. It is urged by respondent that a presentation of claim for the liability of the 'bank under the assumption clause in the deed was unnecessary because it was a transaction had with the special examiner in charge, and was had subsequently to the suspension of the bank. It is urged that the situation is analogous to obligations incurred by an administrator in administering an estate. It is urged that the beginning of the foreclosure action was the equivalent of a presentation of the claim, citing McKeon v. Meade County Bank, 156 N. W. 795, 37 S. D. 100. Even so, the action was not begun until two months after the right to present claims was barred. It is also urged that the foreclosure decree estops the superintendent from asserting that the claim: was barred. We have carefully considered all of the points raised by respondent, but find no merit in them. The taking of possession of the bank’s property by the superintendent by reason of its insolvency operated to transfer all the property of the bank to him. Rev. Code 1919, §§ 8925, 8927, 8928, and 8976.
The judgment and order appealed from are reversed and the cause is remanded, with directions to dismiss the mandamus proceeding.