Grigsby v. Verch

MeCOY, J. [1, 2] It appears that one Day, on and prior to the 24th day of May, 1893, was the fee owner of the S. W. Jd of Se.c. 22, T. 109, R. 60, in Beadle County; that on said date said 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 for the benefit of creditors to ope Plankinton as assignee; that on the 3rd day of June, 1893, the said Day made a general assignment for the benefit of creditors to one Momsen; that on the 23rd day of August, 1901, the assignee of said Plankinton Bank, by order of court, sold and conveyed said land to one Jenkins: that on the 24th day of November, 1902, the assignee of said Day, by order of court, sold and conveyed the said land to said Jenkins, which deed was recorded July 24th, 1906; that thereafter said Jenkins sold and conveyed said land to one Jochem, and thereafter, on the 29th day of May, 1903, said [41] Jochem by warranty deed sold and conveyed said land to defendant for the cash consideration of $1600.00 the full value of said land. On the 10th day of June, 1905, the said Day, by quitclaim, conveyed to plaintiff whatever right, title or interest he then had in said land. It also apears that on the 24th day of November, 1902, the said Plankinton Bank conveyed by deed to one Herman' as assignee of said bank; that thereafter said Herman deeded and conveyed said land to said Jochem on the 26th day of November, 1902. It appears that said Day at all times had knowledge concerning the said assignment proceedings, both in the assignment made by himself and in the assignment made by him as president of the Plankinton Bank; that said Day or plaintiff never made any claim to said land prior to the beginning of this-action; that in 1894 the said land was sold for taxes to one Benson who thereafter paid the -taxes thereon until 1902, and the whole of said -taxes were redeemed by defendant, and that all subsequent taxes have been paid by defendant. On the trial the court found among other things that said Day and the plaintiff have been guilty of laches and should now be estopped from asserting- any interest to the said land adverse to plaintiff, and entered judgment accordingly. Plaintiff appeals. The facts and circumstances and issues presented by this' appeal are almost precisely the same as those in the case of Grigsby v. Larson, 24 S. D. 628, 124 N. W. 856. The decision in this case will be governed by the rule in that -case. It is -contended in this case that the deed from Day to the Plankinton Bank, dated May 24, 1893, was in fact a mortgage, and conveyed no title to -said bank, — that at the time said deed was executed and delivered there was a verbal understanding that it was given as security for some indebtedness of Day -to said bank. As against the defendant in this case without actual notice of the oral defeasance it must be held -to be an -absolute deed, and as conveying absolute title to said bank. Section 2071, Civil Code, provides: “When a grant of real property purports to be an absolute conveyance, but is intended to be defeasable on the performance of certain conditions, such grant is not defeated or affected as against any person other -than the grantee or bis heirs or devisees or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the [42] register of deeds of the county where the property is situated.” If Day transferred, as against this defendant, all his right, title and interest, in said land to said bank, then it necessarily follows he had no interest remaining to be transferred to plaintiff, and plaintiff stands in this action, as against the defendant, without any title whatsoever upon which he could base or maintain this action, and it therefore would be immaterial, so far as plaintiff is concerned, whether the transfers by 'the assignees for the benefit of the creditors were regular or not, or whether or not the said assignment proceedings have any foxce or effect in this state. The creditors of the bank might, if the assignment sale was void, still have some interest but Day and his successors would have none. The plaintiff and his predecessor in alleged interest stood by and made no claim of interest in said land, and saw the same sold and conveyed by the said assignees to Jenkins, and by Jenkins to Jochem, and by Jochem to defendant. We are of the opinion that this constitutes a complete estoppel. All the various assignments of error have -been fully considered. Nothing has been overlooked. Finding no error in the record the judgment and order appealed from are affirmed.