4 S.D. 454 | S.D. | 1893
This was an action to foreclose a mortgage alleged to have been executed by William S. Wait and Lucy A. Wait, his wife, on a quarter section of land in Lincoln county, to secure the payment of a promissory note for SI, 500, executed by said William S. Wait. The defendant Lucy A. Wait
The findings of the court, and its conclusions of law thereon, are as follows: “(1) That, at all the times in this action mentioned, the defendants, William S. Wait and Lucy A. Wait, were and are now husband and wife, and residing together as such. (_2) That, at all the times in this action mentioned, the premises affected by this action. * * * were the homestead of these defendants, and occupied as such. (3) That the de fendant Lucy A. Wait did not sign or deliver the mortgage set forth in the complaint, and recorded in Book O of Mortgages, jpage 586. (4) That the defendant Lucy A. Wait never signed or delivered any mortgage upon said premises, but did sign and deliver a blank paper to her husband, William S. Wait; that, thereafter, without the knowledge or consent of Lucy A. Wait, and without any authority from her, the same was filled out as a mortgage, at the special instigation of the said plaintiff. (5) That the debt secured by said purported mortgage was an antecedent debt owing from William S. Wait to the plaintiff, and that no new consideration passed under the same. ” “Conclusions of law: (1) That the mortgage mentioned in the complaint, and recorded in Book 0 of Mortgages, on page 586, in the office of the register of deeds of said Lincoln county,
Numerous errors are assigned, but, as only one question was argued by the learned counsel for appellant, it will not be necessary to insert them in this opinion. The facts, briefly stated, are as follows: The mortgage in controversy, with the exception of the amount it was given to secure, was filled up by Mr. Wait at his home, some miles distant from Canton, and signed and acknowledged by himself and wife before a neighboring justice, of the peace. The mortgage was executed in the name of one Levi Paxton as mortgagee, but he admits that he had no interest in the mortgage, and that he only acted as the agent of the plaintiff, to whom he transferred the legal title to the mortgage soon after the same was delivered. It appears from the evidence of Mr. Wait and his wife (the respondent herein) that she verbally authorized her husband to insert in the mortgage, as the amount to be secured thereby, the sum of $1,000, on condition that he should not give a mortgage upon his cattle. Subsequent to the execution and acknowledgment of the mortgage in blank as to the amount to be secured thereby, Mr. Wait took it to Canton, where he, in the presence of the counsel for the plaintiff, Mr. Paxton, the person named as mortgagee, and of the plaintiff herein, and in the absence of his wife, and without any other or further authority from her than that above stated filled up the mortgage by inserting, as the amount to be secured thereby, the sum of $1,500, and delivered the same to said Paxton, and also executed a chattel mortgage upon his cattle, and delivered that also.
The learned counsel for the appellant contends that, as Mrs. Wait authorized her husband to fill the blank in the mortgage, and the husband actually filled the blank, no private understanding between herself and husband as to the amount to be inserted can defeat the appellant’s right to foreclose the
In the case of Ayers v. Probasco, 14 Kan. 175, the facts were almost identically the same as those in the case at bar. In that case the wife, Mrs. Ayers, executed a mortgage on the homestead, in blank as to the amount to be secured by it, rate of interest, and name of mortgagee. She understood and consented verbally that the mortgage might be filled up- for $1,000, at 15 per cent, per annum interest to one Challis. The blanks in the mortgage were filled up for $1,100, the rate of interest increased and the name of Probasco was inserted as morgagee instead of