Muller v. Flavin
South Dakota Supreme Court
Appeal from circuit court, Bon Homme county. Hon. E. G. Smith, Judge. • Action by Henry A. Muller against Timothy F. Flavin. From a judgment in favor of defendant, plaintiff appeals. The facts are stated in the opinion. One who alleges that a deed absolute in form was intended as a mortgage only, is required to make strict proof of the fact, and the evidence must be clear, convincing and satisfactory.
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Appeal from circuit court, Bon Homme county. Hon. E. G. Smith, Judge. • Action by Henry A. Muller against Timothy F. Flavin. From a judgment in favor of defendant, plaintiff appeals. The facts are stated in the opinion. One who alleges that a deed absolute in form was intended as a mortgage only, is required to make strict proof of the fact, and the evidence must be clear, convincing and satisfactory. Jones on Mortgages, § 335; Jasper v. Hazen, 58 N. W. 454; Perot v. Cooper, 28 Pac. 391; Winston v. Burnell, 24 Pac. 577; Wilson v. Pershall, 129 N. Y. 223; Morris v. Nyswanger, 58 N. W. 800;…
1Opinion of the CourtCorson, J.
This is an action to quiet title to a tract of land in Bonhomme county, under section 5449, Comp. Laws. The jury having disagreed, the case was tried by the court upon stipulation of the parties, and, findings and judgment being in favor of the defendant, the plaintiff appeals.
The title of the plaintiff is based upon a patent of the United States issued to William Muller, Sr , a deed from Muller, Sr., lo Mary Kirk, and a deed frorh Mary Kirk to the plaintiff. The defendant’s title is based upon a sale of the property under an execution issued in an action in favor of the defendant, Flavin,…
2Cases cited6 opinions
- Loos v. . WilkinsonNew York Court of Appeals · 1888
- Henley v. HotalingCalifornia Supreme Court · 1871
- Pardee v. . TreatNew York Court of Appeals · 1880
- Metz v. State BankNebraska Supreme Court · 1878
- Fish v. FowlieCalifornia Supreme Court · 1881
1 more not listed; retrieve them via the Exa API.
3Cited by10 opinions
- Muhlenkort v. Union County Land TrustSouth Dakota Supreme Court · 1995
- Davis v. Holy Terror Mining Co.South Dakota Supreme Court · 1906
- Waite v. FrankSouth Dakota Supreme Court · 1901
- Breeden v. MartensSouth Dakota Supreme Court · 1907
- Bentz v. EsterlingSouth Dakota Supreme Court · 1956
5 more not listed; retrieve them via the Exa API.