11 S.D. 30 | S.D. | 1898
This is an action brought by plaintiff to
cancel a notice of Us pend,ens filed in an action wherein said defendant Grigsby was plaintiff, and one Frederick T. Day was defendant, and to vacate and set aside a warrant of attachment
It is undispúted that the legal title of record, at the time the Us pendens was filed, and warrant of attachment issued, and levy made thereunder on June 3, 1893, was in said Frederick T. Day; but the plaintiff claims (1) that the property at that time was held by said Day in trust for the plaintiff; (2) that said Day had, in fact, prior to the issuance of said warrant of attachment, conveyed said property to the plaintiff by deed dated in 1890, but not then recorded. In order to a proper understanding of the case, a somewhat full statement of the facts will be necessary: The plaintiff and said Day were in 1884, and prior and subsequently, residents of Milwaukee, Wis. Day was extensively engaged in the business of loaning money on farm lands in the Northwestern states, including the then territory of Dakota. The plaintiff advanced money to Day to loan for him, under a verbal agreement that Day was to guaranty all loans — principal and interest. This verbal agreement continued until March, 1893, when the parties made the following written agreement: ‘Tn consideration of the guaranty by F. T. DajT that I shall l’eceive within five years from the date hereof (or so much further time as may be now mutually agreed upon), principal of the loans described in the annexed list, and interest now unpaid to me‘thereon, as is. intended to be shown by said list, at the rate of seven per cent per annum, and interest on interest at the same rate, and the further agreement on
It is difficult to understand or define the precise nature of the transactions between Mr. Day and the plaintiff. .The plaintiff contends that Day, in making this loan and using plaintiff’s money, was the agent of plaintiff, and that, consequently, the mortgage and deed taken on the foreclosure sale were in equity the mortgage and deed of the plaintiff, and that Day simply held the legal title in trust for the plaintiff. But it will be observed that Day had guarantied the payment, not only of the principal, but of all interest, and interest on deferred interest, to the plaintiff, whether the money was'employed or not, and to pay interest on deferred interest, whether col
The contention of appellant thaj; the plaintiff had acquired the legal title, at the time the warrant of attachment was levied, to the property, is equally untenable. The quit-claim deed executed by Day in 189,0, and placed among the plaintiff’s papers, kept by Day, was not by that act delivered to the plaintiff. As stated by Day, it was not intended to be a delivery, and was placed there as a precautionary measure — to be delivered in