On Petition for Rehearing (filed June 13, 1916). .
A petition for rehearing has been filed herein, wherein, among other things, it is asserted that, in our former opinion, we erroneously assumed that tbe Union Banking Company was financially embarrassed .and unable to perform its contract with Paine at tbe time it assigned to him tbe tax certificates involved herein on'July 6, 1893. Plaintiffs’ principal witness was Jimella S. Wiest, tbe stenographer and bookkeeper of tbe Union Banking Company, and in her testimony she states, .among other things: “As I remember, we wrote and told him (Paine) *370that we were short of funds and would not be able to get money from eastern investors with which to buy new tax-sale certificates. . . She also testified: “We had no ready cash to buy new certificates to replace those in his hands. . . .”
Mrs. Wiest’s testimony relates to, and purports to describe, the conditions existing immediately prior to and on July 6, 1893. As stated in our former opinion, the Union Banking Company had been unable to pay certain interest instalments then past due upon the certificates of deposit held by Paine. Such interest instalments aggregated in all $280. An examination of the records of the Union Banking Company, offered in evidence, shows that no new transactions were entered into by this company- subsequent to July 6, 1893. The various gold bonds and certificates of, deposit shown upon the books of the company were all issued at prior dates. Its record of tax certificates purchased in the various counties in North and South Dakota shows that all tax-sale certificates were purchased prior to that time. In fact, the evidence convinces us that the trial court very properly found “that the said Union Banking Company joractically terminated and went out of active business in or about the year 1893, and has not since engaged in business.”
The petition for rehearing also asserts that in our former opinion we overlooked the fact that, at the time the assignments were made, several of the tax certificates so assigned had already been redeemed,, and that the redemption moneys which had been paid in to redeem such tax-sale certificates, and then in the hands of the several county treasurers,-amounted in all to exceed the sum of $1,900. In our former decision we recited certain undisputed and controlling facts, which, in our opinion, justified the trial court in finding that the plaintiffs had failed to establish a cause of action by sufficient competent proof. While the facts recited in our former decision, in our opinion, justified the trial court’s finding and were sufficient by themselves to require an affirmance of the judgment rendered by the court below, still, in arriving at our former decision, due consideration was given to all the evidence offered by plaintiffs- and to every fact and circumstance developed or sought to be established by such evidence, including the evidence-offered by plaintiffs relative to the matter under consideration. We-are, however, wholly unable to understand how the fact that a number *371of the tax certificates had actually been redeemed at the time the assignments were executed and delivered to Paine can possibly aid the plaintiffs. The plaintiffs base their cause of action primarily upon the proposition that the assigmnents of tax certificates executed to Paine on July 6, 1893, while absolute on their face, and pretending to vest absolute title in Paine, were, as a matter of fact, not intended to constitute absolute assignments, but that such assignments were made solely for the purpose of enabling Paine to obtain the redemption moneys from the county treasurers direct, as the certificates might be redeemed. '
The evidence shows that Paine held certificates of deposit aggregating in all $5,600: $3,000 of which was payable November 25, 1895; $600 payable January 1, 1896; and $2,000 payable July 1, 1896. The Union Banking Company, on July 6, 1893, was indebted to Paine for past-due interest instalments on such certificates of deposit in an amount aggregating in all $280. This was the only sum it was required tó pay at that time. It is a matter of common knowledge that in July, 1893, and for some time prior,' as well as subsequent, thereto, this country was in the midst of a financial panic. Money was difficult to obtain. Investments and securities of all kinds could be purchased at the lowest imaginable prices. The Union Banking Company was in financial straits. Tet it is contended that at this time it knowingly and intentionally assigned to Paine over $1,900 in cash then in the hands of the different county treasurers as collateral security for certain certificates of deposit. In our opinion this evidence, instead of supporting plaintiffs’ claim, rather tends to establish the fact that the assignments made by the Union Banking Company to Paine on July 6, 1893, were absolute, and intended to transfer to Paine the absolute title to such tax certificates and all moneys or properties which might be derived therefrom or acquired thereby.
As stated in our former opinion, the plaintiffs in this action assert that they, as trustees of the Union Banking Company, a dissolved corporation, are the owners and entitled to possession of the lands described in the complaint. They were required to establish this fact by satisfactory, competent evidence. The evidence shows that Paine never wras in Aberdeen, South Dakota, in connection with the business dealings between himself and the Union Banking Company, but that such business transactions were carried on exclusively by correspondence. *372Plaintiffs sought to prove the contents of such correspondence by the testimony of IVIrs. Wiest, the stenographer and bookkeeper of the Union Banking Company.- As stated in our former opinion she severed her connection with the company in the fall of 1894 or the spring of 1895, and since that time she has had absolutely nothing to do with the company or its affairs. She has subsequently married and resided in Minnesota and Oregon, and is at the present time a resident of British Columbia. Her deposition was taken in Seattle in August, 1915, or more than twenty-two years after the correspondence between the Union Banking Company and Paine was had. The plaintiff, S. H. Cranmer, appeared as attorney for the plaintiffs at the time of the talcing of the deposition and personally conducted her examination. As stated in our former opinion, the correspondence between Paine and the Union Banking Company was not produced, and, so far as the record shows, Mrs. Wiest had no notes or memoranda, stenographic or otherwise, from which to refresh her memory so far as the contents of the correspondence is concerned, but she pretends to testify thereto solely from memory.
Assuming (but not deciding) that this testimony is admissible, it by no means convinces us that plaintiffs, as trustees of the Union Banking Company, are owners of the lands involved in this litigation. When all the evidence adduced by the plaintiffs is considered in light of the undisputed facts and circumstances in the case, we are led to the irresistible conclusion that plaintiffs have failed to establish any right to recover. The former decision will stand.
A rehearing is denied.