23 S.D. 570 | S.D. | 1909
This case is before us upon appeal by the plaintiff from a judgment dismissing his complaint. The action was instituted by the plaintiff to foreclose a $200 mortgage and to recover of the defendant Strahon the sum secured by said mortgage, with interest thereon at the rate of 12 per cent, per annum from the 17th day of February, 1894. It ,is disclosed by the record that on the 17th day of February, 1890, two of the defendants, Rasmus K. Hafsaas and Jennie Hafsaas, impleaded with the respondent, executed to the plaintiff their promissory note for iiic sum ,of $200, with interest at the rate of 12 per cent, per annum, and secured the same by a mortgage executed by,them on certain .lots in the city ,of Sioux Falls. The note was made payable .one year from its date, and no part of the principal has been paid, and no part of the interest since February 17,, 1894, has been paid. It is further disclosed by the record that on the 19th day of March, 1890, said Hafsaas. conveyed the property to the defendant and respondent Stifahon .under seal, .and that said deed contained the usual covenants of warranty, “except two1 certain mortgages for
It will be observed, therefore, that the note and mortgage exe-. cuted by Hafsaas to the plaintiff were'executed in February, 1890; that Hafsaas conveyed the mortgaged property in March, 1890, to the appellant, who assumed the payment of the note, together with the $1,000 note and mortgage and the $60 mortgage. The case was tried to the court, who found the facts substantially as above stated, and among other conclusions of the court are the following: “That more than 10 years have elapsed since the making of said deed by the defendant Rasmas K. Hafsaas and wife to the defendant J. G. Strahon prior to the commencement of this action, and that this action against the said defendant J.' G. Strahon is barred by the statute of limitations.” ■ The only question presented is: Did the court err in its conclusion of law that plaintiff’s, action was barred by the six-year statute of limitations?
It is contended 'by the appellant that as the original mortgage from Hafsaas to the plaintiff was a sealed instrument, and the deed from Hafsaas to Strahon was also a. sealed instrument, the six-year statute of limitations is not applicable to the case, and that the statute of limitations as to the respondent Strahon who assumed the payment of the amount’ du.e on the note and mortgage is the 20-year statute applicable tp sealed instruments. The learned circuit court in adopting the view that plaintiff’s claim was barred by the six-year statute of limitations was clearly right. It will be noticed that the respondent Strahon was not la party to the original mortgage executed by Hafsaas to the appellant, nor did
The judgment of_the circuit court and order denying a new trial are affirmed.