162 N.W. 369 | S.D. | 1917
The defendant Jesse E. Crawley, owner of certain lands in Custer county, executed a mortgage to> the plaintiff to secure an indebtedness of $3,500. The dwelling house thereon, which was insured for $3,000, was destroyed by fire. The policy of insurance was not so drawn as to inure to the benefit of the mortgagee. Shortly after the fire the insurance company sent its authorized agent to adjust the loss. Prior to such adjustment the agent called at the home of Mrs. Peterson, the plaintiff, and there learned of the existence of the mortgage. An adjustment was made, and, with .the consent of Mrs. Peterson and Crawley, the mortgagor, a draft for the amount of $2,000 covering the loss was issued in their joint names, and sent to one Randall,, who was local agent of the insurance company at Rapid City, and was also cashier of the Merchants’ Loan & Trust Company, codefendant in this action. Pending the adjustment of the loss, the plaintiff, Mrs. Peterson, raised some question as to the sufficiency of the mortgage security, owing to the destruction of the house, and Crawley expressed to her his purpose and desire to. use $1,000 of the insurance money for the erection- of a new house on the land, which was consented to by her. With this understanding, the draft in the hands of Randall was indorsed by both Mrs. Peterson and Crawley and left with him for deposit in the defend
“To be used by P. L. Randall in constructing new house.”
The remaining $1,200 was deposited in Crawley’s name. Later the defendant Crawley concluded not to rebuild, and in a letter to plaintiff so advising her said:
“I would like to apply the $t,ooo insurance deposited on your mortgage. This money, as jmu know, will only lay in the bank and cannot do either of its any good. Hoping this meets with your favor, I am your friend.”
Plaintiff consented to this proposition and Crawley sent her a check for $200 on another bank, and another check for $800 drawn on the Merchants’ Loan & Trust Company. The Merchants’ Loan & Trust Company refused payment on this check on the ground that Crawley was indebted to the bank, and that the bank had the right to appropriate this deposit in settlement of such indebtedness. About this time the defendant Crawley disappeared, and thereafter this action was brought by plaintiff to foreclose her mortgage, and the defendant bank and Randall, its cashier, were made parties thereto, plaintiff claiming the right to recover the deposit of $800 from the bank to apply 'on Crawley’s indebtedness, and to a judgment of foreclosure and sale for the balance of the amount due on the mortgage.
The trial court found that the $800 was received by the defendant bank and its cashier, Randall, for the sole purpose of applying the same to the erection of a dwelling house upon the premises covered by the mortgage, and to enhance the mortgage security, and that the same was a special deposit held by Randall in trust for the benefit of plaintiff and said Crawley, and for such purpose only, and that the defendant Crawley, by agreement with plaintiff, had the lawful right to direct, and did agree and' direct, that the amount so deposited should be applied upon the mortgage indebtedness. The evidence conclusively shows that the cashier Randall, was fully advised as to the purpose for which the deposit of $800 was made in his name, and that it was not a deposit for
The findings, conclusions, and judgment of the trial court are in all things affirmed.