18 S.D. 155 | S.D. | 1904
This is an action to foreclose a mortgage on certain premises in Douglas county. It is alleged in substance in the complaint that one Fred E-. Summers in December, 1887, executed and delivered to one John T. M. Pierce five certain promissory notes, each for the sum of $15, with interest at the rate of 12 per cent, per annum after maturity; that, to secure the payment of said notes, said Summers executed a mortgage on a quarter section of land described in the complaint; that said Summers, having made default in the payment of the moneys secured by the said mortgage in August, 1890,
The court, in its findings of fact, finds that no evidence was offered by plaintiff to prove the execution or delivery of the five notes alleged in paragraph 1 of the plaintiff’s complaint, except the recital contained in the instrument set out in paragraph 2 of these findings, purporting to be a mortgage, and that in paragraph 2 the court finds that said Summers did on the 5th day of December, 1887, execute to said Pierce an instrument in writing, being the instrument alleged by the plaintiff, in paragraph 2 of his complaint, to be a mortgage on the premises described; setting forth a copy of the instrument. The court further finds that the property was conveyed to Wanzer, and that he is now the owner in’ fee of the said premises, and was such owner at the time this action was commenced, and that the said Summers has no interest in or title to the said premises. The court further finds “that the cause of action set forth in the plaintiff’s complaint did not accure within six years after the commencement of this action.” The court thereupon concludes from the findings that the plaintiff was not entitled to recover as against the defendant; that the instrument purporting to be a mortgage, described in the plaintiff’s complaint and in the findings, is not a sealed instrument; that the time
It is contended by the respondent, in support of the judgment of the court below, that there is really no alleged error before this court to review, for the reason that no exceptions were taken to the findings of the court, or to any errors of law. The plaintiff, in his motion for a new trial, states that he will move for the same on the following grounds: “(1) Insufficiency of the evidence to justify the findings of ihe court, .in this: that there is no evidence whatever that the said Fred E. Summers was a resident of the state of South Dakota at any time after the execution of said mortgage. (2) Errors in law occurring on the trial of the said cause, in this: that it is not in any manner shown that the said action is barred by the statute of limitation. (3) That; under the findings made by the court, the plaintiff is entitled to judgment for the reason that the six-year statute of limitation has no application to cases of this kind. (4) That, under the findings of the court, the said action would not be barred until the expiration of ten years from the maturity of the debt secured by said mortgage. (5) That the evidence is insufficient to show that, said action is barred by the statute of limitation, it not being shown that len years has elapsed since the maturity of said mortgage.” The only assignments of error are “(1) that the court, upon the record presented, should have rendered a judgment in favor of appellant; (2) that the court erred in denying plaintiff’s motion for a new trial, for the reasons assigned in his said motion.”
It is contended by the appellant that it was the duty of the court to have found upon the issue of the execution and delivery of 1he said noles, as there was evidence introduced by the plaintiff to sustain the allegations of his complaint as to such execution and delivery, but, in our opinion, the -court was clearly right in finding that there was no proof to sustain the allegations, except the recitals in the alleged mortgage; and, as before stated, in our view, these recitals did not, in the absence of the notes in evidence, sustain these allegations, or
In our opinion, therefore, the record discloses no evidence tending to prove the genuineness of Summers’ signature to the notes, and hence there was no evidence upon which -the court could base a finding other than the finding made by it. While the evidence may have been sufficient to prove such transfer, neither the assignment of the mortgage so denied by the defendant, nor the mortgage itself, gave the plaintiff a right of action, in the absence of the notes, and the absence of proof accounting for their nonproduction at the trial. Bergen v. Urbahn, supra.
The circuit court was clearly right, therefore, in dismissing the action, and its judgment and order denying a new trial are affirmed.