Cassill v. Morrow

Citations

• 13 S.D. 109
• 82 N.W. 418
• 1900 S.D. LEXIS 119

Syllabus

<p>1. After revival of a dormant judgement ag'ainst .defendant, a suit was brought to subject thereto lands to which defendant’s wife held title. Defendant’s answer alleged that G., acting as his wife’s agent, had procured from the one who obtained the judgment an agreement to compromise it for $152, but that G. had fraudulently secured an assignment of it to the one owning it at the time of suit for $152. Defendant tendered $152 into court, and asked that the judgment be decreed satisfied. Held that, as Comp. Laws, $ 5111, declares an application to revive a dormant judgment must be denied unless it be established that it is wholly or in part unsatisfied, defendant was not estopped, by the order reviving the judgment, from making his equitable defense to the suit on the ground that it might have been litigated on the hearing of the application for revival, since, under Id. § 5111, such defense would have been insufficient, and could not have been litigated.</p> <p>2. Where, in a suit to subject lands to which the defendant’s wife held title to the payment of a judgment against defendant, defendant’s answer alleged that G., acting as his agent had procured from the one who obtained the judgment an agreement to compromise it for $152, but that G. fraudulently conspired with the one owning the judgment at time of suit, and procured an assignment of it to him, and no evidence was offered tending' to establish knowledge or conspiracy on the part of the purchaser, a finding that the purchaser had notice of G.’s agency for defendant could not be justified on a presumption that G. imparted his duplicity and violation of confidence to the purchaser.</p> <p>3. Nor would a finding tha,t the purchaser had notice of G.’s duplicity be justified on the ground that knowledge of G. was notice to the purchaser as G.’s principal in the procuring of the assignment to such purchaser.</p> <p>4. In a suit to subject lands to which defendant’s wife had the legal title to the lien of a jud