First Natioanal Bank v. Walton , 50 S.D. 40 ( 1926 )

D-ILLON, J.

On March 8 ,1917, defendants Walton executed to Maude M. Horsfall and Allen L. Horsfall of Flandreau, this state, a mortgage upon land in Moody county as security for notes in the amount of $17,309. Later a number of transfers of the mortgaged land were made. In September of 1917, the plaintiff, a banking corporation organized under the laws of the United States and located a,t Pipestone, Minn., loaned to defendants Plorsfall $9,000, and, as security for said money, the defendants Horsfall indorsed the notes for $17^309, and assigned to plaintiff the mortgage securing said notes, and executed to plaintiff notes evidencing the indebtedness created by the loan by plaintiff to the Horsfalls. Said notes were subsequently renewed by the giving of other notes, and it is these new notes that are now in suit. The transaction was made at plaintiff bank in Pipestone, Minn., and the notes are payable at Pipestone, Minn The money was received by the Horsfalls in plaintiff bank in the form of a draft. The assignment of the mortgage, however, was executed and acknowledged in Moody county, this state. Before the commencement of this action, Allen L. Plorsfall died and Maude M. Plorsfall was duly appointed executrix of his estate. This action was commenced to foreclose the pledge of said mortgage and notes secured thereby. The defendants all defaulted, with the exception of Maude M. Horsfall, personally and as executrix, and the -defendants Simons, who appeared and answered. The issues raised' by the answers are, substantially, as follows:

“(1) A so-called plea in abatement; each answer alleging that after the commencement of this action the defendants Simons were declared bankrupt by the bankruptcy court in the state of South Dakota.

“(2) That the plaintiff is a foreign corporation and that the notes executed -by the Waltons and the assignment of the mortgage-are void.”

No evidence was offered in support of the plea in abatement, and the plea was denied. The court made its findings of fact and conclusions of law. The foreclosure of the mortgage was decreed! and the mortgaged premises were ordere.d sold under the mortgage, the proceeds of the sale to be used in payment of costs and disbursements and the note executed by the Horsfalls to plaintiff bank. Any surplus was to be subsequently disposed of in accordance with the law and the decree of the court.

The transaction in question-, so far as the bank was concerned, is authorized by section 5136, U. S. R. S. (U. S. Comp. St. § 9661), and no state law can make it void. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188. Inasmuch as no evidence was offered to support appellant’s plea in abatement, there was no- error in denying such plea.

The 'balance of the questions involved in this action are governed by the decision of this court in Bankers’ Life Co. of Des Moines, Iowa, v. Maude Horsfall et al, 48 S. D. 629, 205 N. W. 714. There are many assignments of error, but since the case is disposed of by the recent decision, as stated above, it is unnecessary to consider them.

The judgment and order denying a new trial are affirmed.