File No. 5644 | S.D. | Jul 9, 1927
This case is before us on rehearing. The former opinion is reported in 50 S. D. 6, 208 N.W. 222" court="S.D." date_filed="1926-04-05" href="https://app.midpage.ai/document/wenzlaff-v-tripp-state-bank-6691308?utm_source=webapp" opinion_id="6691308">208 N. W. 222. Here
Plaintiff brought the action to foreclose a $17,500 mortgage on the Tripp State Bank building, executed by Waldemar Wenzlaff, president of the bank, as mortgagor, to the bank, as mortgagee. Waldemar W'enzlaff held the record title to the building. In our former opinion this mortgage was held invalid because the bank was the true owner of the .building. Plaintiff- obtained the mortgage by an assignment without consideration from her husband, Salomon Wenzlaff, father of the cashier, Waldemar, and it is conceded her rights are no greater than those of .Salomon would have been, if he had brought the action.
For a considerable time Salomon -had been an officer of the bank. During the summer and fall of 1920, the superintendent of banks had made repeated demands on the bank officers to take out a large amount of paper resulting from personal dealings of the officers. The superintendent of banks "was insisting on the elimination of this paper and also demanding that the bank make good its reserve, when the name of Salomon as an officer was scratched off the letter heads of the bank. Oh August 7th, the superintendent noticed this and objected to recognizing any transfer of stock until the items were eliminated as requested and the bank’s assets made good. The superintendent’s requirements -were not complied with and finally all the stock of the bank was assessed 100 per cent, and on June 27, 1921, Waldemar wired his brother, Edgar, as follows:
“See Salomon send at once Chrismann twelve thousand See twelve thousand Goldhammer seven thousand and notes I can get nine thousand here to make Plirnings forty thousand and wire can protect you both.”
Hirning was superintendent of banks. The bank’s capital stock was $40,000. Following this telegram Edgar came to the 'Tripp State Bank, and in the negotiations there, as agent of Salomon, obtained an assignment of the said mortgage of $17,500 from the bank to secure three notes owing by Waldemar to Salomon and in payment of the Goldhammer note and mortgage to be assigned to the bank. From the entire record it is plain that this transaction was in furtherance of a scheme to raise the assessment
The case must be decided on equitable principles. The transaction was illegal. Salomon had guilty knowledge of Waldemar’s intent to deceive the superintendent of banks, and so did the bank 'through its president, Waldemar. Salomon, Waldemar, and the bank came into court with unclean hands, and none were in position to ask affirmative relief. This court would have been justified in refusing any relief and might have properly refused to entertain the suit and dismissed it. But this was not done. Instead, relief was granted and the mortgage canceled upon the prayer of the bank. Equity, having assumed to act, must do complete justice. Justice is of the same quality whether meted to saint or sinner.
Where the mortgage is canceled, the transaction is rescinded, and each party is entitled to be placed in his original position as though the transaction had not been had. Nor is the position of the bank any different because the bank received the Goldhammer mortgage for the assessment legally owing to it. When it received the mortgage from its creditor, Waldemar, it did so with full knowledge that Waldemar received it through an illegal transaction, which, as soon as set aside, leaves the assignment of the Goldhammer mortgage without consideration and void. Plaintiff is therefore entitled to have such mortgage returned as the final step in effecting a rescission of the illegaj transaction.
Lest some may think we have overlooked the rights of creditors of the bank, we make this observation. The creditors’ rights are not involved in this suit. It is in no sense a creditors’ suit, nor are their rights involved in the answer of the bank. Nowhere does it appear that any of the creditors were affected by the transaction. True, the creditors might receive larger dividends if the bank could retain its ill-gotten gains, but that does not make it right for them to do so. No creditor has a
The directions to the trial court in our former opinion are withdrawn, and the judgment and order appealed from are modified with direction to the trial court to find the value of the Gold-hammer mortgage and enter judgment of foreclosure for that amount, with interest and costs, to find against plaintiff as to the balance of the debt sought to be recovered, and to decree that upon the payment of such judgment the mortgage shall -be fully paid and satisfied. Costs to be taxed in this court in favor of defendants and appellants.