Stock Growers' Bank v. Nefsy

212 N.W. 512, 51 S.D. 72, 1927 S.D. LEXIS 172

Opinion

GATES, J.

This is an action to foreclose the $10,000 mort- ■ gage mentioned in Giddings v. Niefsy (No. 5604), 212 N. W. 507, the opinion in which is handed down herewith. For the purposes of trial this case was consolidated with that. The mortgage and the note which it secured were assigned to. plaintiff bank as collateral security for an. indebtedness due from Giddings. The witness Sumner was vice president of plaintiff bank, and was present at and participated in the negotiations which resulted in the purchase of the 1,960-acre ranch by appellants, and knew all about that transaction, and was looking after the interests of Giddings as well as the interests of the bank, which was “a heavy creditor” of Giddings. Dtefendants. appeal from the judgment and order denying new trial.

From the evidence of Strainer alone the -conclusion is irresistible that whatever defense to the note and mortgage was open to appellants while Giddings owned them was open to- appellants after •they were assigned to respondent.

Therefore, iby reason of our decision in the other ca!5e, the judgment of foreclosure in this case and the order denying new trial are vacated.

BURGH and FOUDEY, JJ., dissent.