228 N.W. 807 | S.D. | 1930
In April, 1916, First National Bank of Aberdeen commenced a mortgage foreclosure action against S. H. and Emma A. Cranmer involving* real estate in the city of Aberdeen. 'Service was made upon the Cranmers in Minneapolis, and no appearance was made by either of them in the action. Fred Gannon was appointed receiver to collect the rents and profits and apply them to plaintiff's demand.
In November, 1916, judgment of foreclosure by default was entered. The mortgaged premises were sold, and, after expiration of redemption period, a sheriff's deed was obtained and the mortgage debt satisfied. The receiver made a report to the court on which a hearing was had, and on September 4, 1918, the court
On a former appeal in this case (49 S. D. 275, 207 N. W. 97) we held that “the only defense worthy of any considera
When this case was formerly before us, it was held that the clerk, Nelson, had knowledge of plaintiff’s claim, that the court had no jurisdiction to bind plaintiff in that proceedings and that therefore any order under which the clerk claimed he acted in paying over the money to Suttle was void and afforded the clerk no protection. The defense that the conveyance to plaintiff was in fraud of Cranmer’s creditors was not available to Nelson. He was no creditor, and it is elementary that a conveyance in fraud of creditors can be assailed only by creditors, and it is valid as to other parties. 27 C. J. 470. Neither is defendant Suttle in any position to question plaintiff’s title in this action. The assignment of the fund by the 'Cranmers to plaintiff is good as against the Cranmers. It vested the legal title of the fund in plaintiff. Suttle had no right or authority to appropriate this money in satisfaction
Suttle’s appropriation of the money was simply a conversion of it, and his liability to plaintiff therefor accrued when he received' it from the clerk on May 13, 1919. The claim to set off the balance he alleges is due him from the Cranmers under his mortgage foreclosure cannot be asserted or maintained in this action. Robinson v. Nelson (S. D.) 226 N. W. 341.
The judgment and order appealed from are reversed, and the cause remanded for further proceedings in conformity with this opinion.