236 N.W. 372 | S.D. | 1931
Appellants John O. and Guri Brubakken, his wife, executed and delivered to Torger G. Gronseth their promissory note on January 31, 1916, for $6,000 due January 31, 1926, with ten interest coupon notes. The indebtedness was secured by a real estate mortgage. The defense interposed to the foreclosure of the mortgage is that the mortgage was materially altered making it void. Section- 910, R. C. 1919.
Written on the lower margin of the principal note is the following: “This note is secured1 by mortgage on Wij^ SE% and Ejá SW.JÍ of section 17 and NWJ4 section 20, all in 128 — 54, and lots 1, 2, 3 and 4 of section 32 — 128—54 of even date herewith.” The notes and the marginal writing were in the handwriting of F. J. Brown. He testified that the writing on the margin was there at the time the notes were signed. The mortgage was in the handwriting of Brown’s partner, Frintup. Before the trial Printup had died. For ease in reference to the several parts of the description of the lands in the mortgage, we have indicated them as parts A, B, C, D, and E, as follows:
(Part A) “The West one-half of the Southeast Quarter and the East one-half of the Southwest Quarter of section seventeen .(17) in Township One Hundred and1 Twenty-eight (128) N., Range Fifty-four (54) West.”
*417 (Part B) “And the Northwest one-quarter of Section Twenty (20) in Township One Hundred and Twenty-eight (128) N., Range 54 W.”
(Part C) “And Lots One, Two, Three and Four (1, 2, 3, 4) of Section Thirty-two in Township' One Hundred and Twenty-eight (128) N., Range Fifty-five (55) W.” ' ■ .
(Part D) “As security for the payment to said mortgagee at Britton, S. D., of the principal sum of six Thousand (6,000) Dollars and interest thereon * * * according to one certain promissory note ¡bearing even date herewith, * * * with 10 interest coupons attached, * * * that the same are free from all incumbrances
(Part E) “Subject, however, to a mortgage for $2,000.00 on the NWIJd Sec. 20, Twp. 128, Range 54 hereinbefore mentioned. * * * ”
Parts B and E1 had ink lines drawn through them to- indicate their cancellation. The land described as part A was known as the Narum quarter; the land described in part B, as the homestead; and the land described in part C as the tree claim. Appellants claim that as originally executed this mortgage contained the description of the Narum quarter only. Respondent claims that the mortgage as recorded and' presented at the trial was in the same condition as when signed.
At the trial the mortgagee_ explained the lining out of parts B and E thus: He (Torger G. Gronseth)' had already a mortgage of $2,000 on Brubakken’s homestead and tree claim when he sold the Narum quarter to Brubakken for $6,000. After some discussion it was agreed between the parties that the $2,000 theretofore secured by a mortgage on the homestead and tree claim should be secured by a mortgage on the homestead only, part B, and that the $6,000, representing the purchase price of the Narum quarter, should be secured by the Nurum quarter and the tree claim. This understanding was arrived at after the mortgage had been partly drafted. After the proper papers had been prepared to secure the $2,000 indebtedness with a mortgage on the homestead only, Print-up lined out of the $6,000 mortgage the description of the homestead, and also part E, the $2,000 incumbrance clause. Before the trial the mortgage of $2,000 on the homestead had been paid.
It is uncontradicted that from the time John signed the mortgage and took it to the farm for Guri’s signature, until after the
On the other hand, if appellants testified truly, they mortgaged only the Narum quarter to secure, its entire purchase price to be paid ten years later with annual interest of per cent, and the effect of all the papers prepared on January 31, 1916, was to free from the lien to Gronseth the Brubakken tree claim. Guri, whose testimony at a former trial was introduced, signed the $6,000 mortgage with a mark. Eric testified that he read and translated the $6,000 mortgag'e to Guri, who asked whether the tree claim was in it and was told that it was not. John says he heard Eric read the mortgag’e to Guri, his mother. After testifying positively on direct examination that at the time he signed the mortgage in the office of Brown and Printup it contained only the Narum quarter, John testified on cross-examination concerning that occasion, as follows:
“Q. Did you read the mortgag'e or somebody else read it to you? A. Nobody read the mortgag'e there.
“Q. Nobody read the mortgage there? A. No.
“Q. You did not read it over? A. I did not read it over before I came to my woman.
*419 “Q. And then at the time you signed the mortgage at Print-up’s office, did you not read the mortgage yourself? A. According to that it was all blank there.
“Q. Answer that question yes or no. A. No.
“Q. You did not read it? A. No.
“Q. You did not know what was in that mortgage until you got out home and Eric read it to your wife? A. Yes.
“Q. The first you knew what was in the mortgage? A. Yes, about the agreement to be in the mortgage.
“Q. You knew what the agreement 'was? A. Yes, sir.
“Q. You heard what Eric read out there? A. Yes, sir.”
On conflicting- evidence the learned trial judge found that there was no material alteration of the mortgage after its execution ; that the changes made in the mortgage were made before its execution to conform to the agreement of the parties; that the respondent 'Gronseth had paid taxes and insitrance on the premises in the sum of $658.94; and that the total amount due to respondent as principal and interest, taxes and insurance, was $11,1x0.87. The foregoing findings are abundantly supported by the evidence. The quetsion 'of material alteration is decided by the findings. Whitney Loan & Trust Co. v. Brown, 42 S. D. 95, 172 N. W. 875.
Appellants also object to the allowance to respondent of $500 as 'his attorney’s fees. The history of this litigation has been partially set out in Gronseth v. Brubakken (S. D.) 228 N. W. 189, being case No. 6793. The present appeal is from the judgment of foreclosure in what was, in case No. 6793, referred to as action No. 3. It appears that in January, 1916, Gronseth sold the Narum quarter to John O. Brubakken for $6,000, taking back a mortgage for the full purchase price. John O. Brubakken never paid either interest nor taxes nor any part of the principal. His son Eric made three interest payments only of the ten due and paid no taxes whatever after 1921. On December 9, 1925, respondent herein, Thomas Gronseth, assignee of the mortgage, commenced foreclosure by advertisement. On January 9, 1926, appellant John Brubakken obtained an order restraining foreclosure by advertisement. Respondent then brought action in foreclosure against John O. and Guri Brubakken, the mortgagors, and after trial had on July 7, 1926, judgment for $9,663.57 was entered in favor of respondent. The premises were advertised for sale
The judgment and order appealed from should be, and they are, affirmed.