Smith v. Commercial National Bank

Citations

• 7 S.D. 465
• 64 N.W. 529
• 1895 S.D. LEXIS 102

Syllabus

<p>1. S., one of the plaintiffs and husband of his>coplaintiff, executed a promissory note to one A., and both the plaintiffs executed a mortgage to said A. on real property situated in the city of Huron to secure said note. A transferred said note and mortgage to one M. The plaintiffs not being able to pay M. the money due on said note and mortgage, S. arranged with a bank in Huron to advance the money to M., and the said S. and one C. as surety, executed a note to said bank for the same, and M. transferred the A. note and mortgage, leaving the name of the assignee in the assignment of said .mortgage blank, and the A. note and mortgage were deposited in said bank as security'for C., as surety upon said note, with the knowledge and consent of S., and in pursuance with said arrangement with said bank. This note not being paid, S. arranged with the defendant bank to advance the money to take up said note, and agreed that said defendant should take his own note and a transfer of the A. note and mortgage as security for such advance, and further agreed that the name of some officer of the bank should be inserted as assignee in the assignment of the mortgage for the benefit of the defendant bank. Thereupon the defendant remitted to the Huron bank the amount required to take up the S. and C. note and received from the latter tire A, note find mortgage, in the assignment of which mortgage the name of a bank officer of the defendant was inserted, and the assignment was thereupon duly recorded. The S. note to the defendant, renewed from time to time, not being paid, the defendant proceeded to foreclose the A. mortgage in its own name by advertisement. Of this last transaction the wife had no knowledge. Held, that these transactions did not operate as a payment or extinguishment of the A. note and mortgage, and that it was competent for S. to so arrange with the defendant bank to take and hold the same as security for his note to such bank. Held, further, that the defendant b