19 S.D. 595 | S.D. | 1905
In 1883 F. T. Walker and Dominic Rhom berg, were partners engaged in the loan and investment business having their principal office at Dubuque, Iowa. During that year they made a loan to one William Bennett, for $400, taking a note therefor secured by a mortgage on a quarter section of land in Beadle county, in this state. The note and mortgage, as was the custom with that firm, was taken in the name of Walker. In 1884 the note and mortgage were assigned to one Kelly, and subsequently within a short time thereafter were reassigned, leaving the name of the payee of the note and the assignment in the mortgage blank. Subse
It will thus be seen that the mortgage and note were executed and delivered to Walker & Rhomberg in 1888; that they were assigned and transferred to one Kelley, who -subsequently reassigned the mortgage and indorséd the note in bank,. giving authority to Rhomberg to fill up the-blanks, that in 1888'
It is contended by the appellant that, as she showed by the undisputed evidence that she became the owner of the note and mortgage a year prior to the death of Mr. Walker, to whom the note and mortgage were originally executed, and the possession of the note and mortgage remaining with her agent, she became the absolute owner of the same, and was not required to place the same upon record, and that her failure to place the same upon record was not such negligence as estops her from.claiming the benefit of the note and mortgage. And it is further contended by the appellant that the pretended assignment and transfer of the mortgage by Mrs. Walker was without right, and parties claiming through, or under her were required to investigate the title before taking an assignment of the mortgage, and that, had they done so, they would have discovered that she had' no interest whatever in the property. On the other hand, it is contended by the respondent that, as the note and mortgage were executed in the name of Mr. Walker, the husband, and the mortgage was recorded, and, it appearing that Mrs. Walker was the sole de-visee of the estate of her husband, deceased, the plaintiff was justified, notwithstanding the absence of the note and mortgage, in purchasing the same from the assignee, claiming under Mrs. Walker, as the defendant, Mrs. Rhomberg, failed to record her assignment of the mortgage or give notice of her
- - It is quite, clear; therefore; that the' learned circuit : court erred in requiring the defendant to pay to the plaintiff out' of-' the proceeds of- the'mortgage sale the afiiount specified in the decree, and that the decree-, in the'"case-Should be' reversed; and modified by striking therefrom all that part- of ' the-.- samó-