
    James B. Warren, Appellant, v. Louisa Rogers, as Executrix, etc., of Orlo Rogers, Deceased, Respondent.
    
      Msw trial—granted on the ground that the court gave insufficient consideration to the case.
    
    The evidence given on a jury trial of an important case, involving questions not within the ordinary compass of jurymen, was closed on the afternoon of the third day of the trial. The trial justice stated that he would allow each side ten minutes in which to sum up the case, but extended the time to fifteen minutes upon the' plaintiff calling his attention to the fact that the greater portion of the evidence given on behalf of the plaintiff had been read to the jury. The justice commenced his charge to the jury with the following statement: “It is rather necessary that the court should take the half-past six train to-night if it is possible to do so, but in consideration of this case the court is desirous that you do full and complete justice between these parties even if you cannot get in by half-past six. There is a single question here and it looks to me as though you could decide ita'bout as quick as counsel have been for the respective parties in addressing you on the subject.” No analysis of the testimony was presented to the jury nor were they given any explanation of important documentary evidence which had been introduced. The case was submitted to the jury with the following remark: “ Take this case and see how quick you can decide it; decide it honestly and right, giving all the parties full consideration.” The jury retired at five-forty p. m. and returned a verdict of no cause of action at six-fifteen p. m.
    
      Held, that, in view of all the circumstances, the case did not receive from the trial judge the consideration to which the litigants were entitled, and that for this reason a new trial should be granted.
    Appeal by the plaintiff, James B. Warren, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 9th day of February, 1900, upon the verdict of a jury dismissing the complaint upon the merit's, and also from an order bearing date the 2d day of October, 1899, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Virgil K. Kellogg and Levi H. Brown, for the appellant.
    
      Watson M. Rogers, for the respondent.
   Spring, J.:

On the 21st day of April, 1890, W. H. Ramsey and wife and J. H. Ramsey, of the city of Sioux Falls, S. Dak., executed and delivered to J. W. Bailey, Jr., their mortgage upon a lot owned by them and ’Situated on Main avenue in said city, to secure the payment of the sum of $3,000, with interest thereon at seven percentum, to be paid in accordance with a promissory note or bond of even date therewith given by the said W. H. and J. H. Ramsey, and said mortgage also contained the personal covenant of the said two mortgagors to pay the said sum of $3,000. The said indebtedness became due May 1, 1895, and the mortgage was recorded April 22, 1890. These premises were conveyed to the plaintiff by a warranty deed bearing date May 1, 1890, and recorded June fourteenth, following, and said deed contained an assumption clause reciting that the grantee “ assumes and agrees to pay ” the mortgage above described. By deed bearing date on the 18th day of June, 1894, but delivered November fifth of that year, the plaintiff conveyed said premises to Orlo Rogers, the defendant’s testator, and a like assumption clause was contained in that deed, which was recorded November 7, 1894. Simultaneously with the delivery of this conveyance and as part consideration for it, the said Orlo Rogers and wife conveyed to the plaintiff a farm of 120 acres in Aurora, S. Dale., upon which there was'a mortgage of $800, the payment of which said plaintiff assumed in the deed delivered to him. Possession of the city lot was at once taken by virtue of the deed from the plaintiff, and he went into possession of the farm. In November, 1894, an action to foreclose said Ramsey mortgage was commenced in the State court of South Dakota, and both the plaintiff and Orlo Rogers, who lived in Jefferson county in the State of New York, were named defendants in the action, and judgment for deficiency was asked in the complaint against these two defendants. Orlo Rogers appeared in that action by his brother-in-law, Cyrus Walts, an attorney at law residing at Sioux Falls aforesaid, and this paved the way for a personal judgment against said Orlo Rogers for any deficiency which might result. During the pendency of 'that action, by deed of conveyance executed November 22,1894, but not delivered until January, 1895, said Orlo Rogers conveyed said city lot to C. W. McKinney, and that deed, which was recorded January 10, 1895, contained an assumption clause of the said $3,000 mortgage identical with the one- contained in the other deeds. Said foreclosure action, did not go to judgment, but the plaintiff paid the whole amount thereof, and has commenced this action to recover against the executrix of Orlo Rogers,, who died before its commencement, on the theory that by the assumption clause in the deed said Rogers became primarily liable for its payment, and that the said plaintiff, by meeting the obligation resting upon him to the holder of the mortgage, became subrogated to all the rights and remedies available to that holder. It appears by the statutes of South Dakota that a surety who satisfies an obligation “ with or without legal proceedings” can enforce reimbursement from his principal, and avail himself of every remedy which the creditor has against the principal. (Compiled Laws of South Dakota, §§ 4307, 4308.) The .common-law rule that the grantee in a deed who assumes and agrees to pay an outstanding incumbrance upon the property conveyed becomes the primary debtor and his grantor is thereafter his surety obtains in the State of South Dakota.

This skeleton statement of these transactions on the face of. the papers contains every element to make the plaintiff’s cause of action invincible. The plaintiff was personally liable for the payment of the mortgage debt. Orlo Rogers assumed and agreed to pay that indebtedness by a covenant in the deed which vested him with the title. He recognized the force of this assumption clause by embodying a like covenant in the conveyance by which he parted with the title. When sued in the foreclosure action he brought himself within the jurisdiction of the South Dakota . court, and further gave emphasis to the effectiveness of this assumption clause by not interposing any defense, and yet by his appearance rendered it possible for a personal judgment to be recovered against him.

The controversy between the parties does not involve any criticism of the well-settled principles of law adverted to, but impugns the conveyances themselves to the extent of claiming that the transaction culminating in the deed from the plaintiff to Orlo Rogers was carried on by Burt Rogers, a son of the said Orlo Rogers, who had no authority to saddle liability upon the latter for the payment of this mortgage. At the time of the delivery of this deed the plaintiff resided and in fact- was in England. He came to this country in 1880, locating in Iowa, becoming an American citizen, and had charge of a large tract of land in that vicinity for an English trust company, and had some dealings on his own account in South Dakota and Iowa. The said Burt Rogers during this time was residing in Sioux Falls and was engaged quite extensively in buying and selling real estate, chiefly as agent or broker. In 1894' the plaintiff had again taken .up his residence in England, hut had returned here to look after his property interests and those intrusted to him. In June of that year he returned to his home country but left with his agent a deed executed by himself and wife of the premises in South Dakota, except- that it did not contain the name of any grantee or consideration. It did contain the assumption clause referred to, and the purpose was to permit the agent of the plaintiff, if opportunity offered, to effect a sale of the premises by inserting the amount of the consideration and the name of the-grantee in the deed and delivering it, thus avoiding the necessity of obtaining a conveyance from the plaintiff in England.

Burt Rogers and Preston, the agent of the plaintiff, met pursuant to an arrangement at the office of Mr. McGilvra, a dealer in real estate living at Larch wood, Iowa, and who was also an agent of the plaintiff. McGilvra and Preston testified that at that time the name of Orlo Rogers as grantee was written in the deed from the plaintiff and the consideration also inserted; that at the same time Warren’s name as grantee was written in the conveyance of the Aurora farm, and the deeds were then delivered. Burt Rogers testified that he told Preston and McGilvra that he had no authority to act for or take title in his father, but finally consented to do so at the urgent solicitation of these men. He further testified that as a matter of fact he never possessed any authority to act on behalf of his father; that the conveyance of the Aurora farm was taken in the name of the father because the son was in embarrassed circumstances, but the father had no' actual interest in the property. At the. time the deeds were delivered Mr. Preston had not seen the Aurora farm and a written guaranty of the title was executed, containing also statements as to the number of acres in the tract, its quality, and the interest oil the $800 mortgage had been paid to May 1, 1894. Burt Rogers signed his father’s name to this paper “ by Burt Rogers, Agent.” Burt Rogers testified this was executed without authority and at the time he advised Preston and McGilvra of his lack of authority, which statement they dispute. The defendant testified that when the deed was executed to McKinney it contain'ed no reference to the $3,000 mortgage and the son testified he wrote that clause in after he received the deed. Judge Walts, the attorney for the respondent in this case, and who is her brother and a subscribing witness to the McKinney deed, testified that it was his impression there was no allusion to the mortgage in the deed at the time of its execution. In explanation of the effect of his appearance in the foreclosure action, Cyrus Walts testified that he had no authority to appear for Orlo Rogers in that action. It is apparent from this resumé of the evidence that the vital questions involved in the case arose from the disputed facts which the jury might have determined either way and have been supported by .the evidence in the conclusion reached. We have gone thus extensively into the salient facts, not for the purpose of giving any intimation in regard to their proper solution or to the inferences fairly to be gathered from them, but to emphasize the statement that the decision of the case was peculiarly within the province of the jury.

Upwards of two days were taken up in the trial of the case. The jury were impanelled Thursday evening, October nineteenth, the trial continued on Friday and an adjournment was had until the succeeding Monday and occupied the entire day. The plaintiff’s witness Preston gave his testimony in the presence of the jury. The witness Rice was also sworn on behalf of the plaintiff, but his testimony was confined to the statement that the assumption clause in the deed from the plaintiff to Orlo Rogers was in the. handwriting of the plaintiff, which fact was thereupon conceded by the defendant’s counsel. The testimony of all the other witnesses for the plaintiff had been taken by deposition before the trial and was read to the jury. Several deeds had been received in evidence, and in order that the jury might get a clear comprehension of the issues involved, an explanation of .the facts and of the nature of the action was necessary. The evidence was closed in the afternoon of the third day of the trial. The court stated he would allow’ten minutes on each side in which to sum. up this case. The counsel for the appellant protested against this abridgment of his time, saying,. that length of time will be entirely inadequate. The evidence for the plaintiff has been almost entirely read. A long period of time has elapsed since the reading. We ought to have at least an hour.” The court thereupon extended the time to fifteen minutes. The trial justice commenced his charge to the jury by informing them that it is rather necessary that the Court should take the half-past six train to-night if it is possible to do so, but in consideration of this case the Court is desirous that you do full and complete justice between • these parties even if you cannot get in by half-past six. There is a single question here and it looks to me as though you could decide it about as quick as counsel have been for the respective parties in addressing you on the subject.” There were many requests to charge, and after -they were concluded the trial justice stated to the jury: “ Take this case and see how quick you can decide it,; decide it honestly and right, giving all the- parties full consideration.” The jury retired at five-forty and returned with their verdict at six-fifteen, thus giving heed to the injunction to dispose of the case quickly.

The trial justice in his very brief charge stated “ there is but a single question of fact here, and that is, whether or not Orlo Rogers, the deceased, had full knowledge of the essential and material facts in regard to that assumption clause in that deed.” While that fact was the pivotal one to be determined, yet back of it was the question for the jury to settle whether Burt Rogers was acting in behalf of his father. An elucidation of the facts upon which that authority was claimed to rest was essential to enable the jury to comprehend the real nature of the controversy they were called upon to decide. No analysis of the testimony was presented to the jury. No explanation of the clauses in the various conveyances was given, but the jury were left to work out a result from this bald proposition of law and with the injunction that a prompt verdict was desired. With all due respect to the learned trial justice who presided at the trial, we are forced to the conclusion that the case was not fairly presented to the jury. The case was an important one. It involved questions not within the ordinary compass of men residing in a rural community. The testimony had been largely read to them. There was considerable documentary evidence material and cogent to a proper decision of the casé. No explanation was given to the jury to enable them to appreciate the contradictory testimony presented, but they might fairly believe from the charge of the court that the facts were easy of solution. This belief might well be stimulated by the statement of the trial justice that they ought to reach a conclusion “ about as quick as counsel have been * * * in addressing you.” The interruption of two days during the trial was after the plaintiff had rested and after the, greater ' part of the testimony on his behalf had. been adduced, which was an additional reason for caution and deliberation by the court and jury. The verdict may have been, correct, but the point which is impressed upon us is, that in view of all the circumstances we have adverted to, the case did not get that consideration from ihe court which the litigants were entitled to receive, and for that reason we are impelled to grant a new trial.

The judgment and order should he reversed and a new trial granted, with costs and disbursements to appellant to abide the event.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide event.  