167 N.W. 497 | S.D. | 1918
Lead Opinion
This action wias Commenced to foreclose a mortgage on a quarter section of land in Lymian county. ' Findings of fact and conclusions of law were in favtor of plaintiff, and decree of. foreclosure entered -accordingly. Defendants assign Hie insufficiency of the evidence toi support the findings- of fact, and appeal to this court.
After a careful examination of the evidence, we are satisfied that tbe findings are not against .the weight of 'the evidence, and they -should not be disturbed.
“lit is said! Aere must be in every grant a grantor, a grantee, and ¡a thing -granted1, and1 a deed! wanting' in either essential is absolutely void.”
Plaintiff’s -rights under h-is- mortgage -are n-ot .'dependent upon nor affected1 by the registration -llaw. Therefore it is not necessary to consider Ae condition of Ae records in Lyman county.
.T-he judgment appealed! from is -affirmed.
Dissenting Opinion
(dissenting). I am- 'at a loss- to understand Ae exact view-s -of Ae majority of Ai© court. Do Aey intend to hold Aat, because “negligence cann’ot be imputed to plaintiff,” Ae recording olf bis mortgage was’ timely and his rights were preserved under Ae recording act? On the other band1, do Aey intend to hold Aat Lund’s; rights under 'h-is -deed, if such 'deed1 had been valid, would1 have been prior to and Would have cut -out plaintiff's -rights under his mortgage, -but Aat Lund acquired nothing under 'his deed!? In Ae one case all Aat is siai-d as to! Ae validity of Lund's deed is obiter; in Ae -oAer -case -any reference to Ae recording aict i-s obiter.
Is it a fact that Lund did not acquire Wiliam’s title? I think not. Plaintiff and the majority of this count rely Upon the decision in Lund v. Thackery, but Ml- Ita reoagndze the difference between, the facts in- that case and those in this one. In Lund v. Thackery, the grantor attempted to recall the deed ‘before it was ever filled, out or delivered; he repudiated the acts oif Hunt and the /banks-; -and he did not receive or accept the consideration paid. The instrument he ihaldl executed remained1 invalid, and therefore never conveyed any title. In the cas-e before us, ¡tibe consideration; Lu-nd’s deed ltd Chew, wa-s delivered to and received by Chew, who- clearly had authority from Williams to receive same, 'Chew being in fact the owner of the equitable title to this land. By receiving such' consideration, the act of filling in itlh-e grantee’s name wa-s ratified, and neither Williams or Chew could1 ever question -¡the validity of sludli deed oir Lund’s title thereunder. Lund having received, in -good faith, prior to. tlie recording of plaintiff’s mortgage, the full title to- -this land, -exactly 'as he -would have received -it if hi® name had -been inserted in the deed by Williams, the recording act furnished him full protection.