*1 415 MORGAN, indicate, checking appropriate space, MILLER, SABERS and is, not, JJ., “the Defendant or same whether concur.
person who was convicted offenses WUEST, C.J., disqualified. Supplemental in the Information.” as found added.) (Emphasis
The circuit court is infused with broad instructing jury
discretion “[i]t judge’s
sufficient if the instructions to the include the elements of the crime
jury
charged.” Blakey, v. 399 N.W.2d State
317, 320(S.D.1987)(citing People, Cahill v. 29, 38, 673, (1943)).
111 P.2d 673 Colo. 137 only
Reversal is warranted if Defendant is showing circuit court
successful error might proportions jury that “the The FEDERAL LAND BANK OF probably would have returned a different OMAHA, Plaintiff and given.” verdict if instruction had been [his] Respondent, Owl, 748, 751 Grey v. 295 N.W.2d State v. (S.D.1980), remand, appeal 316 after (S.D.1982). N.W.2d 801 See State v. Bitt Carlson, L. Melfred CARLSON and E. ner, 121, 125(S.D.1984); 359 N.W.2d State Carlson, Defendants and 384, Feyereisen, 343 N.W.2d 387 Appellant. Defendant No. 15450. jury We note that the circuit court’s in- structions differ from Defendant’s Supreme Court of South Dakota. form; substantively, they are identical. Additionally, jury instruction one is number 23, Argued March 1987. very similar to the one we reviewed in 26, Aug. Decided 1987. 567,570 Camp, State v. Moves 376 N.W.2d Rehearing 20, 1987. Granted Oct. (S.D.1985). Thus, we are hold unable to that the circuit court abused its discretion prejudiced.
and Defendant was
Regarding forms, the verdict Defend- proposed
ant’s form and the form substantially
used are similar. This Court previously refused be dissuaded arguments centering
counsel’s on mere
“technical” “semantic” differences in Camp,
verdict forms. See Moves 376 case, at 570. In this
N.W.2d the verdict used, although precise
form not as as it been, sufficiently
could have clear to
accomplish the task for which it de-
signed. jury could either find that was, not, per-
Defendant or was the same
son convicted of the two earlier of- DWI specifically
fenses. We word used, informing jury offenses
Defendant must be identified as the identi- 12, person January
cal convicted of DWI
1982 and November respects.
Affirmed all *2 agreement
The subordination contained the following provision: This Subordination is limited to the loaned the Lender to for foregoing purpose, Borrower but shall not exceed Sixty- Two Hundred ($267,000.00). seven Thousand Dollars Kay Melfred and defaulted on the mort- gage and FLB commenced this foreclosure action.
FLB
for and
granted
moved
summa-
ry judgment by the trial court. The sum-
mary judgment granted recovery to FLB
against
Kay
Melfred and
in the amount of
$399,660.28; determined
FLB’s
to be a
against
valid first lien
the property
subject
Agnes
to the
to a life
home”;
estate in
“family
held
Agnes’
property
interest in the
as sell-
er under the contract for
is subject
deed
and inferior to the lien of the bank to the
extent of
amount; granted
against
and Kay
Melfred
for the difference
between
judgment
$267,-
Heisterkamp, Rapid City,
Kenneth
for
000;
the FLB
held that
was entitled to bid
respondent.
plaintiff and
$267,000
sale;
at the foreclosure
Smit,
Morman,
Keith R.
Shepard,
Smit
and, among
things,
other
directed that the
Hughes Wolsky, Sturgis,
&
for defendant
public
be sold
one
at
tract
auc-
appellant.
tion.
The summary
does
contain
MILLER,
(on reassignment).
proper-
determination
the value
This is an appeal
summary judg-
from a
ty, although findings of fact state that the
ment
in a
foreclosure action.
fair
substantially
market value is
less than
We reverse.
(see
total incumbrances
Find-
Agnes
(Agnes)
IX).
M. Carlson
ings
sold her ranch
VI and
In its memorandum deci-
to her son
wife,
sion,
L. Melfred Carlson and his
the trial court stated:
Kay. She
sold the
under contract
premises
value
deed,
$295,000.
for
for a
After the
considering the equity of Defendant
made,
payment
down
the balance due
unsubrogat-
M. Carlson under the
$269,000 together
with interest at the
(sic) portion
ed
of her
is not
percent per
rate of six
annum. The first
appraised
rather
15,
payment was
due March
subrogation (sic)
$267,000.
i.e.
Therefore, will be
the decision of the
4,1982,
On
March
Melfred and
Carl-
Court
Plaintiff
sum of
(Melfred
Kay)
this
$267,000
foreclosure
sale.
property to the Federal
Land Bank Oma-
(FLB)
security
ha
promissory
for a
appeals
granting
from the
principal
summary
executed
judgment.
them the
sum of
Melfred and Kay
$267,000. Agnes
appealed.
executed
have not
a subordination
1982,
dated February
ISSUES
subordinated her interest
as seller
mortgagee
contract
deed to the
appellant
FLB.
issues as framed
are:
determined,
as thus
and if a defi-
1. Did the court’s
ciency
and conditions of
remains after the
the terms
violate
provides
mortgagee,
assigns,
21-47-15 which
or his
[for
mortgag-
entitled to a
execution for' such
application to the
ee]?
was ren-
the terms
2. Did the trial
violate
dered.
*3
of
21-47-16
and conditions
shall
provides
which
[that
import
goes
The
of these statutes
of the fair and reason-
provide proof
deeper
right
than the
a deficien
recover
mortgaged premis-
of the
able value
is,
cy judgment.
A
unwilling
full
if
to bid the
es
he is
naturally,
bidding
the inevitable result of
of the
amount
debt]?
less than the full amount of the
its discre-
Did the trial court abuse
3.
mortgagee
debt. The
of the
to bid at
determining
that the
tion in
in
all is embodied
21-47-15 which re
§
parcel
sold in one
or tract?
should be
quires
of a bid at the fair and
submission
value,
good
made in
faith. This
reasonable
DECISION
protection
in
requirement works to the
1
2
so intertwined that
Issues
and
are
mortga
ferior lienholders as well as the
together.
treated
We have
they
be
Thus,
standing
gors.
Agnes had
to raise
21-47-15, -16,
previously referred to SDCL
issue,
though
this
Melfred and
“deficiency judgment
-17
stat
as the
and
appeal.
did not
v. Bra
utes.” Miners & Merchants Bank
(S.D.1985);
Forestry,
that disregard there was a total of that statutory requirement. Apparently, the MORGAN, J., GERKEN, Circuit trial in court became involved an exercise Judge, concur. marshalling assets overlooked the WUEST, C.J., J., SABERS, question basic of full and true concur part in part. dissent gardless of the liens. GERKEN, Judge, sitting Circuit earlier, As stated evidence HENDERSON, J., disqualified. regarding ap- record an praisal $484,000. The trial court did WUEST, Chief (concurring figure. accept part have to Under dissenting part). *4 genuine record there is an obvious issue of I would affirm. precludes fact material Carlson, mother, sold her
judgment, namely, the reasonable value of son, ranch her to L. Melford Carlson and property. court, the The trial rather than The property his wife. was sold under a adopting any figure, made a calculation of $295,000.00. contract for deed for a own, finding which exercise is a of fact made, After the down payment was the not belong summary judg- does $269,000.00 balance due mother was with ment action. percent per interest at the six rate of an- Agnes argues by allowing the sum- Thereafter, num. the and his wife mary judgment FLB, to stand we allow in mortgaged the to the Federal essence, to portion disenfranchise her aof Land Bank of The mortgage Omaha. given of the balance due on her a promissory contract. She secure argues date by in her executed brief that this amount the son and his wife in $267,000.00 the $76,000, being principal sum of inter- the difference between with her est. mother executed a balance due and subordination the subordinated amount. agreement which subordinated her interest Because this case is remanded the trial as seller in the for Contract Deed to the court we need not address that issue.
mortgage by held the Federal Bank Land Agnes also claims that the signed court Omaha. She never the note or abused its in ordering mortgage discretion the ranch nor did she transfer title fee to be sold as a the son. The tract. The trial interest he and his wife court mortgage had to distinct, equitable concluded the ranch was his was one com interest acquired pact, by the contiguous farm, contract for or deed. ranch tract subordination the which should contained fol- be sold in one unit. The lowing provision: ranch 4,000 consists of approximately acres Harding County, Dakota, located in This South subordination is limited the consists loaned the lender to crop balance between land, land, foregoing purposes, borrower for the pasture improved pasture land, Sixty- shall not exceed Two together improvements Hundred with thereon. ($267,000.00). Seven Thousand Dollars has distinct, been utilized as a compact contiguous farm or ranch. When on son defaulted Land Federal Bank When foreclosed. gives pow- 21-47-13 Judgment entered, bal- er and discretion to determine the manner $385,502.00 ance was with interest accrued of sale of mortgaged property. We con- through May 1986. The due to clude that the trial court did not abuse its Deed, mother her Contract properly discretion and directed that interest, $343,000.00. mortgaged premises here be sold a sin- gle parcel or tract of land. provides: Furman mortgage upon past In the of a have referred to SDCL any
In
21-47-16,
21-47-15,
21-47-17, as
action,
his
mortgagee,
estate
real
act,
legisla-
and their
legal representatives,
assigns, or their
purpose
unjust
is “to prevent
tive
enrich-
any part
premises,
may purchase
gain by
ment and
holders of Real Estate
thereof,
provid-
such foreclosure
Mortgages through
thereby
the foreclosure
faith,
fairly
good
and in
ing he bid
146, S.L.1939;
action.” See
Chapter
there-
value
bids the
Miners & Merchants Bank v. Braden For-
of.
(S.D.1985); Perpet-
estry,
trial court did not abuse its discretion ers, including judgment creditors, all me- ordering ranch sold as a tract. lienholders, chanic and materialman subsequent other lienholders. These stat- SABERS, part (concurring utes were never intended to do that. dissenting part). designed -16 are The trial court was correct in determin- prevent mortgage (or an inferior ing mortgaged premises that the be should lienholder) obtaining from a deficiency *6 in a sold tract or unit under SDCL judgment against the debtor without 21-47-13. However, mortgage holder gard to the fair value of the deficiency judgment entitled to a property. Miners & Merchants Bank under SDCL 21-47-16 unless the court Inc., Forestry Services, Braden finds the fair and reasonable value of the N.W.2d 123 These statutes premises is less than the due sum on the prevent should noncomplying likewise a mortgage. mortgage obtaining holder from deficien- evidence of value in this record cy judgment against an inferior lienholder appraisal by appraiser is an Carlson’s signed who has also debt. $484,000. By bidding less than that sum However, these statutes should not be 21-47-16, compliance without with SDCL protect extended to the inferior lienholder destroyed right holder against herself when no one is at- against deficiency judgment Melford and tempting get Kay Carlson. As between If her. she thinks the has holder, FLB, and the subordinated contract a fair and reasonable value above the bid seller, Agnes, mortgage for deed she must bid it or redeem it. was entitled to pleased bid whatever it Miners, supra. prior jeopardizing posi- without secured equally tion. free bid what- pleased. she
ever
Although the deficiency judgment was error,
clear Melford and Carlson have
no challenge they it here because appeal. Likewise,
did not no