14 S.D. 197 | S.D. | 1900
This is an action by the plaintiff to foreclose a mortgage of which it claims to be the owner, executed by Frank Shaw and wife to one Dewey Shaw in October, 1891, to secure the sum of $800. Findings and judgment for the defendants, and the plaintiff appeals.
The respondents Groenevilde and Wumkes claim to be the owners of the property mortgaged, having purchased the same from Frank Shaw and wife in December, 1892, in good faith, for a valuable consideration, and without notice of plaintiff’s claim to the premises. The defendants, Frank W. Shaw, Mary J. Shaw, and
It would seem from the evidence of the respondents that, while they both saw the satisfaction of the Dewey Shaw mortgage on the records of Turner county, neither of them noticed that the instrument bore date a day subsequent to the acknowledgment; but, had they
The mistake of the register of deeds in inserting “State of Wis
Appellant further contends that the deed with special covenants of warranty from Lord to Frank Shaw is, in effect, a quitclaim deed, and hence parties claiming under such a deed cannot be regarded as innocent purchasers; but we do not understand that in this state a conveyance made in the following language, viz: “That said party of the first part, for and in consideration of the sum of $1,200, * * has granted, bargained, sold, and conveyed, and by these premises does grant, bargain, sell, and convey, unto said party of the second part, and unto his heirs and assigns, forever, all of a certain piece or parcel of land in the county of Turner, state of South Dakota, described as follows,” — can be regarded as a quitclaim deed in any sense in which that term is used by the law writers. It will be noticed that it is a grant under our statutes, and carries with it certain implied warranties similar to the express warranties, contained in the deed itself. In this jurisdiction a full warrnaty deed is not required in order to convey the title, and a party may, in a deed of grant, bargain and sale, omit all covenants of warranty entirely, or bind himself by such covenants as he.chooses to insert in addition to those implied by the use of the word “grant” under the statute (section 3249, Comp. Daws) or restrained in express terms contained in such conveyance. In Parker v. Randolph, 5 S. D. 549, 59 N. W. 722, 29 L. R. A. 33, cited by the appellant, the deeds were not before
It is further contended that at the conclusion of the trial no evidence had been introduced tending to prove that the respondents were purchasers for value, in good faith, and without notice. The essential elements which constitute a boni fide purchase are: (i) A valuable consideration; (2) the absence of notice: and (3) the presence of good faith. 2 Pom. Eq. Jur. 745; U. S. v. California & O. Land Co., supra. It is quite clear, as contended by appellant, that the defendants had failed to prove these facts at the time specified, but we are of the opinion that the court was authorized to admit, as it subsequently did, proof of these facts. A formal motion was made to the court for permission to prove these facts, based upon an affidavit of the attorney that he had inadvertantly omitted to prove them on the trial, stating fully and at large the cause or causes for such inadvertence on his part. The admission or rejection of such evidence was largely within the court’s discretion and we are of the opinion that there was no abuse of such discretion on its part. It is further insisted on the part of the appellant that, assuming that the court committed no error in subsequently admitting evidence of the payment of a valuable consideration and that they made the purchase in good faith and without notice, the appellant is still entitled to recover of the respondent so much of the consideration as had not been actually paid when they received the notice of the appellant’s claim. Undoubtedly, the rule is that, where a portion of the consideration has not been paid at the time a party has notice of a prior existing equity, a court of equity can lay hold of so much of the consideration as remains unpaid and apply it to the equitable