Wilson v. Grigsby

147 N.W. 992 | S.D. | 1914

Mc-CO'Y, J.

This was an action by plaintiff and respondent to quiet title to the 'North- East Quarter of Section Twenty-three, Township in, North of Range 63, in Beadle County. Findings and judgment were in favor of plaintiff, and -defendant appeals. The insufficiency of the evidence to- sustain the findings and judgment is assigned. ' • ■ ■

It appears that one Day, on or prior to the 24th -day of May, 1893, was the fee owner of said land; that on said date, Day, by quit-claim- deed, purporting on its face to- be an absolute -deed, conveyed to the Plankinton. Bank of Milwaukee, Wisconsin, all his right, title and interest in and to said land; that thereafter on the 1st day of June, 1893, the said Plankinton Bank, by said Day, its president, made a general assignment of'all its property for the benefit of its- -creditors; that on the 3rd day-of June, 1893, said Day, for him-self, made a general assignment of all his individual property f-or, the benefit of, his- creditors; that .on-the 23rd day of August,, assignsaid Plankinton Bank,.by.¿order of Court,. sol grid-, conveyed. §ai:d,lan.d to one Jenkins.; ,tha.t on,the 24th day of Noy.embe-r, 1902,.the assignee of said Day,.'by order of the court, also .sold' and conveyed the said land to said■ Jenkins ; that the’-said''deed 'from -the assignee of ’Day to'Jenkins was made for thé'purpose of saving the question and'expense of foreclosuré under the said deed from Day to the s'aid Plankinton Bank, it 'being claimed that the said deed from Day to 'the Plankinton' Bank was given as security and as a .mortgage, although absolute on its face; that thereafter the s'aid Jenkins sold and conveyed the'said land to one Jochem, and thereafter,' on Aug. 12th, 1903, the said Jo" client conveyed said land to one Klaveness; that thereafter on the 13th day of August, 1903, the said Klaveness conveyed the said land to one Eberhart, and that thereafter the said Eberhart, on the 31st day of May, 1905, for full cash value, conveyed said land to plaintiff. It also appears that on the 3rd day of January, 1903, the said Day executed and delivered-to appellant a quit-claim deed of said land, 'and 'that said deed was recorded on April iotli, 1903, but on account of a defect in acknowledgement said deed was not entitled to 'be recorded, and that the same was not acknowledged and recorded until the 16th day of June, 1905. It also appears that said Day knew and had knowledge that his assignee and the assignee of the Plankinton Bank were claiming to be the owners of said land, and that said assignees were disposing of said estates, and that for some eleven years after the date of said assignments for the benefit of creditors -made no claim, to' any interest in said lands. It also appears that plaintiff at the time of the conveyance to him had no actual or constructive notice that said Day or the appellants claimed or'had any interest in said land; that at the time of the conveyance to plaintiff the said land, was vacant and unoccupied. The court among other things found that Day and his successor in interest, the appellants, were estopped from making any claim against the plaintiff. We are of the view that the evidence sustains this finding. What is said in the case of Grigsby v. Larson, 24 S. D. 628, 124 N. W. 856, and in Grigsby v. Verch, 146 N. W. 1075, as to the effect of the quit claim deed of Day to the Plankinton Bank applies in this case. Further, conceding that the. said deed was a .mortgage, whatever interest was left in Day was transferred to his assignee, or was so .treated by Day,. and- when Day’s assignee transferred by order of court to Jenkins that apparently transferred whatever equity Day then had remaining in this land. Day was a party to both assignments, and could not 'help but know that the purpose of the assignments was to make a sale of the assigned property for the benefit of the creditors of Day and the bank. Day knew all these things- and that the assignees were -claiming the title to- this land. Dor some eleven years- -he made no- objections to .the actions or claims of the assignees. It is fair to presume that the creditors of Day and the Bank received the value of this land. All the various assignments of error have been fully considered. Viewing- the case as already indicated it will serve no- -useful purpose to further refer to other assignments of error.

The judgment and -order appealed from are affirmed.