18 S.D. 20 | S.D. | 1904
Plaintiff obtained judgment in this action to foreclose a mortgage on real property, and the defendant Stakke, who alone defended, has appealed therefrom, and from an order overruling a motion for a new trial.
The facts are that the defendant Catharina Farsch, for the purpose of securing the payment of a $1,000 loan negotiated on the 21st day óf August, 1889, concurrently executed and delivered to the Des Moines Loan & Trust Company the mortgage', which originally covered 320 acres of land, correctly described as “the northeast quarter of section two (2), and the northeast quarter of section three (3), all in township one hundred and six (106), north of range sixty-three (63) west of the fifth p. m,in Jerauld county, South Dakota. ” On the.9th day of December, 1889, the Des Moines Loan & Trust Company sold the promissory note and assigned the mortgage' to Wilbur M. Brown, since deceased; and the defendant James Barnes, as the duly appointed and legally acting executor of the decedent’s estate, executed and delivered an assignment thereof to respondent on the 22d day of November, 1899, and his authority to thus sell and transfer such security is established by competent proof. Prior to the last assignment mentioned, and to secure the antecedent debt of another, amounting to about $200, the mortgagor gave appellant a second mortgage on the northeast quarter of section 3, in which she covenants against “all
Granting all that is claimed by counsel for appellant, the vital question is whether a mortgagee of two separate and distinct parcels of land, one of which is the homestead of the mortgagor, may, under the circumstances of this case, release such homestead on receiving one-half the entire amount of the obligation, and thereafter collect the balance by foreclosure as to the remaining tract, on which there is a subsequent mortgage, taken subject to the exact amount collectible. "When appellant obtained his mortgage, he had actual knowledge that the premises described therein, together with the homestead of the mortgagor, were incumbered to the full extent of $1,000, and he assumed the burden of paying one-half of such amount in order to protect his security. Having thus taken his security subject to a specified amount of the incumbrance, it would be unjust to the mortgagor to hold her homestead primarily liable therefor, even though appellant had made such a demand on respondent as the statute requires, and the facts disclosed by the record render it clearly inequitable to give his mortgage priority. It is only necessary for the person holding the prior mortgage to resort first to property upon which his lien is exclusive ‘ ‘when he can do so without risk of loss to himself, or of injustice to other persons,” and then only* ‘‘on the demand
The evidence received at the trial clearly shows that the quarter section involved in this action is of sufficient value to satisfy both mortgages, and the court found the same to be reasonably worth $1,700. Assuming, as a general prop
From a careful examination of the entire record, we find the evidence sufficient, and are convinced that no prejudicial error of law occurred at the trial It therefore follows that respondent was entitled to recover, without resort to the released premises, and the judgment appealed from' is affirmed.