*1 trustee, spe- 43-10-3 in the interest to “nominal cifically provision restricts COMPANY, INC., LARSON CONCRETE
trusts,” providing: Corporation, Plaintiff a South Dakota 43-10-1 and 43-10-2 Sections Appellant, resulting by arising trusts or extend or affect prevent of law nor implication STROSCHEIN, Larry M. L. Sharon Stros express trusts as are creation of such America, chein, the United States chapter and defined in authorized acting through Ad the Farmers Home they divest the estate nor do Department ministration, States United trustee the title of such trustee where County, Agriculture; and Brown merely nominal is connected with but political of the subdivision State disposition or man- power of actual some Dakota, Appel Defendants South property real agement relation to lees. subject the trust. which is No. 14187. Further, states: chapter provided, in this Except as ev- Supreme Court South Dakota. property, trust valid ery express in real such, creation, in its vests the whole on Briefs Jan. 1984. Considered trustees, subject in the estate Aug. Decided The beneficiaries execution trust. property or in the
take no estate interest performance of the may enforce the
but
trust. Agreement created
The Trust herein pursuant
express trust to SDCL 43-10-
4(1),2 empowered to whereby Bank sell property in an efficient and convenient “Express and trusts
manner. uses property real or
created to sell proceeds
dispose of the in accordance with creating the trust.” SDCL
the instrument
43-10-7. Fannings’ conveyance of Bank, by warranty means of
estate
deed, Trustee. title Bank as vested therefore,
judgments against Fanning, did and do constitute liens
not attach
against the real estate. Brace Van See
Eps, 12 S.D. N.W. subject no in the
Appellants have interest Therefore,
real estate as a matter of law. granted uphold summary judgment against appellants. Bank
in favor of
All the Justices concur. 43-10-4(1) (1) By written instrument subscribed agent thereto trustee writing[.] authorized property is trust in relation to real valid No unless created declared: *2 Gosch, L. Bantz,
Kennith Gosch of Crem- Peterson, Aberdeen, er & for appellant.
Roy Richardson, Groseclose, A. Wise of Kornmann, Wyly, Klinkel, Wise & Aber- deen, appellees Stroscheins. Ray Murley, P. Atty., Asst. U.S. Sioux Falls, for defendant U.S.A.
Marilyn Marshall, J. Brown County Atty., Aberdeen, State’s for defendant County. Brown MORGAN, Justice. (supplier)
Larson Concrete brought a foreclosure action the Stroscheins’ (owners) property based on a valid mechan- 18,1980 February ic’s lien that was filed on and modified on March A trial 9, 1982, on was held November and in a judgment 1, 1983, entered March the trial recovery court denied on its me- chanic’s lien and ordered to reim- burse owners the amount of fees for defense this action in the amount appeal $500.00. Notice of judgment, pursuant final to SDCL 15-26A- 3(1) April was filed subsequently April amended on part, We affirm reverse and remand in part.
Supplier
ready-mixed
sold
concrete to
Stucky,
Mike
d/b/a Double Diamond Con-
(contractor),
struction
on an
from July 1979 to December 1979. Con-
supplied
crete
to contractor was delivered
farm
owners’
between October
and November
and was billed to
$5,222.09.
account at
poured
place
concrete
left in
farm;
its
delivery to owners’
of the last
pursuant
to a contract
farm
questioned.
validity is not
and contractor.
owners
paid
con-
at issue here was owed
The debt
On November
billed,
had
$13,600.75,
Owners
the amount
contractor
tractor
Contractor,
turn,
in-
in full.
improvements,
payment for the
total
payment to
portion of that
transferred a
Owners’
cluding materials and labor.
*3
payment of the balance
partial
in
$13,600.75
payable to
was made
check for
designat
open
due on his
account without
December
only. On
contractor
open
pay
account
ing application of the
check, together
deposited
per
any specific
ment to
item as
SDCL
job,
another
into his
check from
with a
Supplier’s application of contrac
20-4-7.
brought
that ac-
checking account and
partial payment to the oldest items on
tor’s
$20,183.23. No
other
count’s balance
complied
its
as a
the account
to contractor’s account
deposits were made
and the sched
creditor under SDCL 20-4-8
17,
1 and December
December
open
applying payments
ule for
made on
17, contractor wrote a
1979. On December
out in
20-4-9.* These
accounts set
$10,000.00 par-
supplier for
check to the
employed
statutes have been
to determine
open
payment of the balance due on
tial
payments
application
of contractors’
Payment was made to
account.
suppliers.
regarding
applica-
its
without instructions
comprising the
tion to the various items
The trial court determined that
open account. Contractor’s December
20-4-7, -8, -9 contain the South Da
open
credited to his
account
application
open
kota rules for
account
to the oldest
on December 18
ordinarily
payments and that
these statutes
stan-
items on that account.
i.e.,
parties,
apply even when third
own
was to
procedure
dard
here,
er
are involved. The trial court con
open
to the oldest items first.
on
accounts
cluded, however, that as a matter of law
$7,500.60
due
A
remained
on
balance
preclude
trial
the statutes do not
court’s
open
application
account after
contractor's
equitable principles,
consideration of
nor
payment.
Further col-
of the December
determining
the exercise of its discretion
January
efforts failed and on
lection
just
equitable application
the most
open
due on the
account
the balance
open
agree.
on an
account. We
$8,376.42.
February
On
holding in
The trial court did not base its
plier
mechanic’s liens
all of
filed
this case on the Mechanic’s and Material-
improved
property
to which con-
statutes,
men’s Lien
but rather on its inter
delivered on the con-
-8,
crete had last been
-9,
pretation of
the Per
120-day lien
tractor’s account within the
Obligations
formance of
statutes. The at
period. The lien at issue here was re-
compel
tendant
case
circumstances
10, 1980, in
served and re-filed on March
judicial
exercise
discretion
order
clarify
description
$10,000
equitably apply
order to
own-
supplier’s payment
sup
ers. Owners were notified of
on his
account with the
properly
plier.
approach
lien claim and the lien was
filed
This court called for this
Co.,
register
days
within 120
Bldg.
deeds
Hill v. Alliance
6 S.D.
*
time;
(2)
principal
Of
due at that
(3)
obligation
Of the
earliest in date of matu-
application pursuant
If neither
makes
rity;
within a reasonable time
§
20-4-7 or
§
(4)
performance,
obligation
after
applied
must
Of an
a lien or
secured
obligations
undertaking;
to the extinction of
in the
collateral
order;
following
if
than
there more
one
(5)
obligation
a lien or
Of
secured
col-
class,
obligation
particular
to the extinction
undertaking.
lateral
class, ratably:
of all in that
(1)Of
ance;
perform-
at the
interest due
time of
(1894), stating
N.W.
plaintiff (supplier)
contractor to
“[o]ur
mechanic’s lien law ...
should receive a
jobs,
was from
including defendants’
construction, to the
liberal
end that
...
(owners’), other and newer than those
justice
parties
substantial
be done to all
jobs which received credit for
pay-
”
provisions....
who
be affected
its
ment.
implied
and later
that sufficient and com Thus, the attendant
impel
circumstances
pelling facts and circumstances could re
the inference that it must have been mani
quire
equities
appli
consideration of the
fest to the
(supplier)
creditor
payment.
cation of a
Union Central Life was tendered for
incorporated
materials
Co.,
Co-operative
Ins.
v.Co.
Lumber
specific
into a
project,
improvement
All and con- under this the statutes to foreclosure actions course consider cable except different inten- maximum chapter, give as where strue them so appears provisions plainly provisions possible.” tion to all where added.) chapter. (Emphasis of this construction case does involve This reading the ambiguous statute. After Chapter Referring then to Title 15 at 15-17 above, appears array of statutes set out costs, first 15-17-7 which note SDCL legislature limited the clearly to us pertinent provides part attorney to a suc- maximum fee allowable attorneys’ fees as The court allow lienee to of $25.00. cessful the sum against any party to an for or costs only in the same the cases where action affirm the trial court on the issue We .** provided by statute... specifically enforceability remand with reverse and 15-17-8, which turn to We then to tax fees as costs instructions specifically more opinion. conformance prose- In all actions commenced judgment in the circuit court for cuted to HENDERSON, JJ., concur. DUNN foreclosure chattel or real WOLLMAN, J., part and dis- concurs mortgage plaintiff in such ac- estate part. sents attorney fee shall be
tion
allowed
on the first one hundred dollars
follows:
FOSHEIM, C.J., dissents.
dollars,
ten
judgment,
or under
such
*5
WOLLMAN,
part,
in
per
(concurring
dollar of
three
cent on each
Justice
part).
dol-
judgment
dissenting
of one hundred
in
excess
dol-
exceeding
not
five hundred
lars and
Although
agree
I
much of what
with
attorney
in no case shall
lars. Such
fee
dissent, I
says
Fosheim
in his
Chief Justice
twenty-five
the sum
exceed
dollars
agree
majority opinion
with
to
would
the
the court
order allow an
unless
shall
may
the extent that there
be circumstances
sum
issue has been
additional
when
supplier
charged
with the
under which
is
in such
the
joined
action.
If
applying
payment
to
duty of
contractor’s
action,
to
in such
the
shall
recover
fail
the account incurred for the materials
al-
shall be
in such action
defendant
plied
premises.
For exam-
owner’s
not
attorney
exceeding
lowed an
fee
ple, if in the
contractor had
instant case
added.)
(Emphasis
twenty-five dollars.
payment
owners’
check over to
endorsed
applies materialmen’s lien
to
agree
I think
that the
supplier,
all would
provisions
under
of SDCL
foreclosures
had to
proceeds of that check
have
would
44-9-41, which states:
rep-
applied to
first be
the account balance
tax
The clerk of the courts shall
resenting
to owners’
the concrete furnished
same costs as are allowed
foreclosures
Supply
premises.
Crescent Electric
Cf.
mortgages.
of real estate
Mut.
Cas.
The lien
shall
entitled to
claimant
be
In that situa-
N.W.2d
costs, in
to all other costs
tax as
addition
tion,
acting
supplier would
as a
law,
allowed
sum of five dollars
payment by
owner to
conduit for
direct
preparation
lien
for the
statement
however,
us,
In the case before
register
filing
and account for
represented
the source of the funds
of deeds.
supplier cannot be
to
clearly
developed,
own-
so
identified. As
In Hot
v. Fall River
Springs, etc.
(S.D.1978),
represented
por-
to
Landowners,
supplier
ers’
deposit in
requir-
a case
tion of the funds that were on
reviewing
said that
“[i]n
**
always
to
4: "This
has
subscribed
This is the
of the so-called
footnote
court
enactment
Rule.”
in Boland v.
"American
Rapid
As we noted
American Rule.”
1982),
(S.D.
City,
315 N.W.2d
(notice
does not
validity
bank account at the time
to owner
affect
lien);
I
$10,000
supplier,
written to
but
Elec.
v. Am.
McLaughlin
check was
Ins.,
(S.D.1978);
agree
impels
Empire
the record
N.W.2d 663 (Minn.1982). enough
N.W.2d 773 It is not deciding are say we this case based on 20-4,
SDCL ch. when the substantially modify open-ac-
decision is to supplier’s rights
count
under
ch. 44-
security assuring
other
bond or
no
Albright
mechanic’s liens will
filed.
Smith,
the owner that the
will be
Id.