16 S.D. 302 | S.D. | 1902
This action is against the administratrix and heirs of a deceased mortgagor to reinstate and foreclose a
The evidence shows that on the 12th day of May, 1891, Charles H. Ransom executed and delivered the mortgage ■ to Herbert J. Davenport as security for his promissory note due on or before April 28, 1893, and the assignment of such mortgage, bearing date June 8, 1891, was not recorded until March 7, 1901, subsequently to the death of the mortgagor. While this assignment was being withheld from record, and on the 19th day of August, 1895, Davenport, as the mortgagee, duly executed and delivered the satisfaction to Ransom, the mortgagor, who placed the same of record on the 15th day of May, 1899. Davenport, at all times .since executing the assignment and guarantying' the payment of ihe indebtedness secured by the mortgage, has acted as the agent of respondent with reference to all matters pertaining to the subject of this action, and1 according to the testimony, was so acting when he executed and delivered such satisfaction of the mortgage to Ransom, since deceased. Over the objection of counsel for appellant, Davenport was allowed to testify ‘ ‘that no action or proceeding at law or otherwise has been had for the recovery of the clebt secured by said mortgage, or any part thereof.” At the request of, and in company with, Mr. Davenport, Park Davis, Esq., one of respondent’s attorneys, visited the .office of Mr. Ransom during his lifetime, and was allowed to testify that he heard a conversation between the parties, from which it appears
In the brief of counsel for appellants the point is first urged that the trial court was powerless to set aside the satisfaction of the mortgage without making Davenport a party to the
A careful examination of the entire record disclosed no error, and the judgment appealed from is affirmed.