12 S.D. 285 | S.D. | 1899
This was an action by the plaintiffs, claiming to be the owners of a quarter section of land in Jerauld county, to vacate and set aside proceedings for the foreclosure by advertisement taken by the defendant to foreclose a certain real-estate mortgage upon the said quarter section of land, and to cancel and set aside the deed-made thereon. Judgment for the defendant, and plaintiffs appeal.
The plaintiffs allege in their complaint that the plaintiff George Deindorfer was the owner of the said quarter section of land; that plaintiffs were husband and wife; that on or about the first day of February, 1888, the plaintiff George Deindorfer
The appellants assign the following errors: “(1) The referee erred in making his findings of fact and conclusions of law in favor of the defendant. (2) The referee erred in not
The first assignment of error is too vague and indefinite to require any attention.
The learned counsel for the appellants is evidently laboring under a mistake in the second assignment of error, namely, that the referee erred in not finding as a fact whether or not the plaintiff Sabrina Deindorfer ever acknowledged the mortgage in controversy in this action. It will be noticed by the fifth finding that the referee finds “that said real estate mortgage contained a power of sale, and was duly signed by said plaintiffs, and was duly acknowledged, so as to entitle it to be recorded.” We are of the opinion that this finding, fairly construed, is a finding that the mortgage was not only duly signed by said plaintiffs, but was also duly acknowledged by both of them, so as to entitle it to be recorded, and that this finding applies to Sabrina Deindorfer as well as her husband. What has been said with regard to the second assignment of error applies equally to the third.
The fourth assignment of error, that the said court erred in confirming the said report of the referee, and in rendering-judgment thereon is somewhat vague and indefinite, but we shall consider that and the fifth assignment as referring to the
In this view of the case, the only question necessary to be considered upon the motion for a new trial is the alleged newly-discovered evidence. On the motion the affidavit of one Fred Buetner was .read, in which he stated that he was acquainted with the defendant, Paulina Bachmor; that he had a conversa
The appellants contend that the mortgage was void for the reason that it was executed upon land settled upon by the plaintiffs as a homestead under the laws of the United States, prior to the final proof under such laws. But this question does not seem to have been raised in the court below in any form, and it cannot be, therefore, raised in this court for the first time. Noyes v. Brace, 9 S. D. 603, 70 N. W. 864. Finding no error in the record, the judgment and order denying a new trial are affirmed.