7 S.D. 439 | S.D. | 1895
This was an action to foreclose a mortgage. The appeal is from so much of the judgment as adjudges the appellant bank liable for deficiency. The judgment appealed from can be examined only with reference to the court’s findings. There was no bill of exceptions, or statement, so the findings stand as established facts, and wp have only to inquire whether the judgment is such as ought to follow such facts. In September, 1886, defendants J. H. and Lillian Jones, husband and wife, made their promissory note to Fred F. Connor for $2,500, and to secure the same executed to him a mortgage upon real estate in Beadle county. In January, 1888, the said J. H. and Lillian Jones conveyed the mortgaged premises to defendant Howard A. Maxfield by warranty deed, conditioned that said Maxfield should assume and pay said mortgage as a part of the consideration for said premises, and this deed was immediately recorded. At and before the making of said deed, Jones, the grantor, was “largely indebted to the defendant National Bank of Dakota,, and said deed was executed at the instance and request of the said bank, the title being taken in the name of Maxfield with the understanding and agreement that he was to hold the same as trustee for the said bank. The business was all transacted by the officers of the said bank, and Max-field had no knowledge of the deed or its contents, other than that his name was being used by the bank as its trustee. The bank has had possession of the property, and collected the rents accruing therefrom, ever since the time of said conveyance. Prior to the commencement of this action Maxfield conveyed the title to said premises to the said National Bank of Dakota,” and in
That the complaint was not actually and-physically amended, even if it were contemplated by the court that it should be, we do not regard as very serious. It is very evident that court and counsel all had a definite understanding of the new features that were to be. presented by the amendment. There was no chance for misunderstanding or confusion, for the amendment, if made, was to be in accordance with the facts alleged in Maxfield’s answer, then on file, and the case was thenceforth proceeded with as though the complaint did state such facts. It often happens, in the progress of a case, that the court allows one party or the other