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June, 1899.]

Opinion of the Court-FULLER, J.

danger of insolvency, or has forfeited its corporate rights." In this case, no such claim is made, and, moreover, it is expressly provided that every action to enforce the dissolution of a corporation must be brought by the state's attorney in the name. of the state, on leave of court first obtained. Id. § 5346. Most forcefully does a consideration of the relation that persons both natural and artificial, bear to the state, suggest that the remedy, under the general power of an individual to maintain an action in a court of law or equity against either, extends not to dissolution or extinction of that tenacious principle called "vitality." and it was erroneous to appoint a receiver and dissolve the corporation. Consequently the only issues presented by the pleadings, and properly triable in this action, were such as relate to an accounting between the corporation and its president, Fred T. Evans, Sr., concerning which the referee found with great particularity, and upon which the court rendered judgment in favor of said Evans, and against the corporation, for $47,209.29, and, as we view the record, that part of the decree ought not to be disturbed. The case of Loftus v. Association, 8 S. D. 201, 65 N. W. 1076, is a decision to the effect that a stockholder may, under conditions here disclosed, maintain an action for an accounting against the corporation and its controlling officers, without alleging or proving any previous demand upon such managing body to institute a suit in the name of the corporation to protect his corporate interests and the rights of others similarly situated. Affirming, therefore, the result of the accounting including the finding in favor of Fred T. Evans, Sr., and disaffirming all that relates to the appointment of a receiver and the dissolution of the corporation, we remand the case for further proceedings in accordance with

Opinion of the Court--HANEY, J.

[11 S. D.

this conclusion, and the judgment of the trial court, thus modified, is affirmed, with costs to be taxed against the corporation.

DUDLEY et al. v. DAKOTA HOT SPRINGS CO. et al.

(Opinion filed June 26, 1899.)

Appeal from circuit court, Fall River county. Hon. WILLIAM GARDNER, Judge.

Action by Erwin G. Dudiey and another against the Dakota Hot Springs Company and others. From an order appointing a receiver, defendants appealed. Reversed.

Steele & Dwinnell, Fowler, Cull & Whitfield, for appellants.
No appearance for respondents.

HANEY, J. This action was instituted, by a stockholder of a private corporation for profit, to require the officers of such corporation to make a just and true account as to all of its business affairs, to restrain such officers from selling or incumbering its property, to have a receiver appointed to take charge of all its property, and to have the corporation dissolved. The administrator of a deceased stockholder, seeking the same relief, was permitted to intervene. Answers were served by the defendants, and upon the issues thus joined the cause was referred. Upon the coming in of the referee's report and decision. the court made an order appointing a receiver of all the property of the defendant corporation, both real and personal. After reciting the proceedings substantially as heretofore stated, the order concludes as follows: "And whereas

June, 1899.]

Opinion of the Court-HANEY, J.

said receiver has, upon this 9th day of February, 1897, filed with the court his bond as such receiver in the sum of $10,000, as ordered by the court, which bond has been, and is hereby, approved and accepted by the court, said receiver is therefore hereby authorized, directed, and empowered to take immediate possession of all and singular the property above described, and to continue the business of said company under the order and directions of this court; and each and every one of the officers, directors, agents, and employes of the Dakota Hot Springs Company are hereby required and commanded. forthwith, upon the demand of said receiver, to turn over and deliver to said receiver any and all books, papers, moneys, contracts, accounts, mortgages, or deeds, or other property, real or personal, or vouchers for property, in their possession or under their control, belonging to said company, and particularly to forthwith deliver possession to said receiver of the various bathhouses and hotels, together with all the furniture and equipments thereof, belonging to said company, Said receiver is hereby authorized to institute and prosecute ail such suits as he may deem necessary, and to defend all such actions instituted against him as such receiver, and also to appear in and conduct the prosecution or defense to any suits against said company. All officers, directors, agents, and employes of said Dakota Hot Springs Company are hereby enjoined from interfering with or disposing of said property of said Dakota Hot Springs Company in any way, except to transfer and turn over the same to said receiver." From this order an appeal was taken by the corporation and certain other defendants. Before this appeal was determined, another was taken from a final judgment in the same action, and both have been consid

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ered together. It follows, from the reasons given in the decision upon the second appeal, that the circuit court erred in appointing a receiver with the powers conferred by the foregoing order. Dudley v. Hot Springs Co., 11 S. D. 559, 79 N. W. 839. The order is reversed. As Dudley, in the prosecution of this action, was acting for the corporation and his co-stockholders, we deem it proper that the corporation should be responsible for the costs of this appeal. It is so ordered.

NORTHWESTERN LOAN & BANKING Co. v. JONASEN et al.

1. Laws 1890, Chap. 86, which by express terms exempts a homestead from all process, levy, or sale, bestows on the owner immunity from a sale thereof for purchase money.

2. In view of Comp. Laws, § 5307, providing that an instrument in writing, which is acknowledged or proved, aud duly recorded, is admissible as evidence without further proof, a notary's certificate of acknowledgment to a recorded mortgage is prima facie evidence of every necessary recital, and his uncontradicted testimony in relation thereto is entitled to full credit, and hence an unimpugned certificate of acknowledgment, established by the notary's evidence, gave to a mortage the full force of the mortgagor's signature thereto, though it is conceded that she "did not take hold of the pen," and did not "ask any one to sign her name" when it was done by the notary.

(Opinion filed June 26, 1899.)

Appeal from circuit court, Moody county. JONES, Judge.

Hon. J. W.

Action in forcible entry and detainer by the Northwestern Loan & Banking Company against Erik Jonasen and others in justice court. Title to land being questioned, the action was

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There was a judgment in favor
Reversed.

of defendants, and plaintiff appeals.

The facts are stated in the opinion.

J. H. Williamson, (Aikens & Judge, of counsel), for appellant.

A mortgage to secure the purchase price of a homestead executed by the fee owner need not be signed by the husband or wife of such owner. Roby v. Bismarck National Bank, 59 N. W. 721; Christy v. Dyer, 14 Iowa 438; Hopper v. Parkinson, 5 Nev. 233; Amphlett v. Hibbard, 29 Mich. 298; Austin v. Underwood, 37 Ills. 439; Lasson v. Vance, 8 Cal. 271; Carr v. Caldwell, 10 Cal. 380; Nichols v. Overacker, 16 Kans. 54; Andrews v. Alcorn, 13 Kans. 351.

The evidence was insufficient to sustain the finding of the jury that Mrs. Jonasen did not execute the mortgage. It is against public policy to impeach evidences of title by the sole and uncorroborated testimony of interested parties. Canal Co. v. Russell, 68 Ill. 426; Lickmon Exr. etc. v. Harding, 65 Ill. 505; Graham v. Anderson, 42 Id. 514; Kerr v. Russell, 69 Id. 669; Monroe v. Poorman, 62 Id. 526; Marston v. Brittenham, 76 Id. 611-614. Russell v. Baptist Union, 73 Ill. 337; Baldwin v. Bornheimer, 48 Cal. 433; DeArnaz v. Escandom, 59 Cal. 486; Young v. Duvall, 109 U. S. 573; Smith v. McGuire. 67 Ala. 34; Camp. v. Carpenter, 52 Mich. 375; Johnson v. Van Velsor, 43 Mich. 208-219.

Mrs. Jonasen does not deny that she acknowledged the execution of the mortgage to the notary. This act would amount to a ratification of the notary's act in affixing her name thereto. Jansen v. Cahill, 22 Cal. 563; Videau v. Griffin 21 Cal. 389; Frost v. Deering, 21 Me. 156; Burns v. Lynde, 6

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