The controversy involved in this action grew out of the folloAving undisputed facts: In 1888 the Union Banking Company was organized as a private corporation under the laws of the then territory of Dakota, its principal place of business being at the city of Aberdeen. Upon the subsequent division of the territory of Dakota, its corporate existence continued under the laws of the state of South Dakota. The corporation, among other things, was engaged in the business of loaning money and buying and selling securities. BetAveen the 25th day of November, 1890, and the 1st day of July, 1891, one ■J. A. Paine loaned to the said Union Banking Company four several sums of money, amounting in the aggregate to $5,600. The Union Banking Company issued to said Paine for each of said several sums a certificate of deposit payable in five years from the date thereof, with semiannual interest at the rate of 10 per cent per annum. As collateral security for the payment of such certificates of deposit the Union Banking Company delivered to said J. A. Paine certain tax-sale certificates equal in face amount to the amount of said certificates of deposit. Said tax-sale certificates Avere unassigned and remained in the name of the
The various tax certificates (so far as this action is concerned) covered certain lands in Dickey, McIntosh, Nelson, and LaMoure counties in this state, and were based upon tax sales held in such counties in the years 1890 and 1891. The Union Banking Company became financially embarrassed, and reached a point where it was unable to meet and consequently defaulted in the interest payments upon all the certificates* of deposit held by Paine; it was unable to perform its part of the contracts accompanying the certificates of deposit for the reason that it had no tax certificates to substitute for or replace any tax certificate which it might desire to recall, and it was without funds with which to make purchases of tax-sale certificates. This condition existed on July 6th, 1893, at which time the said Union Banking Company, by its president, S. H. Cranmer, the first-named plaintiff in this action, made, executed, and delivered to said J. A. Paine an absolute assignment of each of the said several tax-sale certificates theretofore delivered to him as collateral security, as aforesaid. At all times subsequent to the making and delivering of such full and complete assignment, the said J. A. Paine made collections of the amounts which were paid for redemption of such tax-sale certificates as the same were redeemed, and retained the moneys so collected and the title to the real estate so procured, as his own; procured the issuance to himself of tax deeds for such lands as were not redeemed, and fortified such tax titles by purchase of subsequent tax certificates and the procuration of tax deeds thereon; contested the claims of numerous and divers persons with reference to such titles, and defended suits brought to set aside tax titles so procured as
The Union Banking Company made no payments, either for principal or interest, upon any of the certificates of deposit held by Paine at any time after July 6th, 1893; nor did the plaintiffs in this action make any tender or offer of payment of the indebtedness represented by such certificates of deposit prior to the commencement of this action. The Union Banking Company made no claim against Paine or against the administrator of his estate until in March, 1914, at which time it brought an action to determine adverse claims to the lands involved in this suit and certain other lands. S. PI. Cranmer, the first-named plaintiff in this case, appeared as one of the attorneys of record for the Union Banking Company in such action and personally verified the complaint therein, The action to determine adverse claims came on for trial in September, 1914, and resulted in a judgment in favor of the defendants on account of the plaintiff therein defaulting.
The charter of the Union Banking Company expired on April 2, 1908, and the plaintiffs, who were the directors of said corporation at the time of the expiration of its corporate existence, bring this new action as trustees by operation of law of said corporation, and assert that they, as such trustees, are the owners and entitled to possession of certain lands in Dickey, McIntosh, Nelson, and LaMoure counties in this state, by reason of the fact that Paine obtained tax deeds for said tracts upon some of the tax certificates which he received from the Union Banking Company. The defendants asserted several defenses, among others, the statute of limitations, former adjudication, and laches.
The trial court made findings of fact and conclusions of law in favor of the defendants which may be epitomized, as follows:
That the plaintiffs have failed to establish a cause of action against the defendants, or any of them.
That plaintiffs’ cause of action, if any they had, was barred by the statute of limitations.
That the Union Banking Company had prosecuted a prior action 'against the defendants to quiet title to the several tracts involved in this action, wherein a final judgment was entered in favor of the defendants, and that such judgment is a bar to this action.
That plaintiffs have failed to show payment or tender to said Paine or his representative, of the moneys represented by the certificates of deposit, and that payment or tender of such indebtedness is a necessary pre-requisite to the maintenance of plaintiffs’ action.
That plaintiffs have been guilty of gross laches, and that any cause of action which they might have had is barred and plaintiffs are estopped to assert any right, title, or interest in the real estate involved herein.
Plaintiffs have appealed and demanded a trial de novo in this court.
The trial court, among other things, found that the Union Banking Company practically terminated and went out of active business in or about the year 1893, and has not since been engaged in business, and that since that time its correspondence, papers, and records have in the main been scattered, lost, and destroyed, and have not been preserved, and that it is not made to appear that any special care for the preservation thereof has been taken by the plaintiffs. The plaintiffs complain of this finding and point to the testimony of S. IT. Cranmer, the former president of the Union Banking Company, wherein he stated that he continued to reside in Aberdeen, South Dakota, until 1908, and that stockholders’ meetings for the election of directors were held during the various years, and that the last meeting of stockholders for the election of directors was held in June, 1907, at which time the plaintiffs were elected directors. The directors were all relatives of S. IT. Cranmer. The plaintiff P. W. Cranmer being his daughter; E. A. Cranmer being his wife; L. E. Powei-s, his brother-in-law, and James IT. Wells, his wife’s brother-in-law, — the latter two being residents of Iowa.
Upon the trial plaintiffs offered the oral testimony of S. H. Cranmer,
Concededly plaintiffs had the burden of proof, and were required to establish their cause of action by competent evidence. The trial court held that they had failed to do this, and in this conclusion we concur. Under the laws of this state it is presumed that a thing delivered by one to another was due to the latter; that a person OAvns the things AAhich are possessed by him; and that a person who exercises acts of OAvnership over property is its oAvner. Comp. Laws, § 1936, subdivs. 8, 11, 12. It is also presumed that private transactions have
The plaintiff, S. IT. Cranmer, was the president and principal stockholder of the corporation. He was the directing spirit and most vitally interested in the safeguarding of any property belonging to the corporation. The directors, as already stated, were his near relatives. He was a banker and a lawyer. The books offered in evidence show that records were kept of the various tax certificates purchased by the company, and that the corporation purchased large numbers of tax certificates in various counties in the territory of Dakota and in the states of North and South Dakota. S. IT. Cranmer, the president and managing ■officer of the corporation, knew that, under the laws of North Dakota, tax certificates issued on any subsequent tax sales would cut off all rights under the tax certificates assigned by the corporation to Paine. He knew that unless the lands covered by such tax certificates were redeemed within two years from the dates of the respective tax sales, the holders of such tax certificates might apply and receive tax deeds for the lands described in the certificates. Comp. Laws 1887, § 1638; Rev. Codes 1895, § 1267. He also knew that, under the laws of North Dakota, the tax certificates assigned to Paine would be extinguished and become null and void unless the holder thereof took possession of the premises or obtained tax deeds on such certificates on or before July 1st, 1906. Comp. Laws, 1913, § 2199.
Cranmer, the lawyer, familiar with the tax-title business, says that his corporation owned the tax certificates assigned to Paine, and yet, if his testimony is true, the Union Banking Company continued a going ■concern until 1907, with Cranmer, the president, in charge of its books, records, and correspondence at Aberdeen, South Dakota. We then have .a condition where Cranmer, in charge of the affairs of the Union Banking Company for a period of about thirteen years, permitted Mr. Paine to retain the property of the Union Banicing Company and treat it as his own. It is conceded that the Union Banking Company neither received nor requested any report from Paine, nor did it have any communication with him of any kind since 1894. Appellants’ counsel assert that the officers of the Union Banking Company were under no legal ■obligation to make inquiry of Paine. We do not care to discuss the
In tbe meantime Paine (who, according to tbe records offered in evidence, was a minister residing at Tarrytown, New York) was not only exercising tbe right of ownership over tbe tax certificates, but he was vigorously asserting or defending such rights in tbe different courts of this state, as evidenced by tbe reported decisions of this court. Tbe conduct of Paine was that of a man asserting or defending his own property rights, and is consistent only with tbe theory that be believed himself to be tbe owner of tbe tax certificates. Tbe conduct of Cranmer was not that of a man who believed himself to be tbe owner of valuable property rights possessed by another. If claims such as presented by tbe plaintiffs in this case could be deemed established by evidence of tbe nature here presented, when viewed in tbe light of tbe conduct of the principal plaintiff, tbe administration of justice would indeed be a mockery, and estates of decedents become tbe easy prey of ingenious and unscrupulous claimants.
Tbe judgment appealed from is affirmed.