Miller v. Berry

Citations

• 19 S.D. 625
• 104 N.W. 311
• 1905 S.D. LEXIS 89

Syllabus

<p>1. The widow of a deceased partner, as sole legatee and executrix of decedent, before the partnership affairs are settled, has no title to a mortgage executed to decedent as one of the partners; and an instrument executed by her as such legatee and executrix, purporting to assigne the mortgage, is a nulity.</p> <p>2. A purported assignment of a mortgage, in which no mention is made of the note or indebtedness which the mortgage was given to secure, is a nullity.</p> <p>3. Where a partnership mortgage was assigned to a creditor of the partnership, but was retained in the possession of the partnership by one of the partners, as financial agent of the assignee, until the death of one o'f the partners, the failure of the assignee to have the assignment recorded did not estop the assignee from asserting title thereto as against one claiming the mortgage under a purported assignment executed by the widow as sole legatee and executrix of deceased, in whose name the mortgage was exe- . cuted; the purported assignment by the widow containing no mention of the note or indebtedness secured by the mortgage. •</p> <p>4. The title to a note and mortgage owned by a partnership, though executed in favor of one of the partners, may be transferred on the indorsement of another of the partners.</p> <p>5. The transfer and delivery of a. partnership note by one of the partners to himself as financial agent of a creditor of the partnership is effective to invest the’ assignee of the note with the title to the mortgage given to secure the note.</p>