6 S.D. 157 | S.D. | 1894
In March, 1891, defendant Dickerman commenced the foreclosure of a real-estate mortgage containing a power of sale, against t-ho plaintiff, by advertisement. While these proceedings were pending the. mortgagor, the plaintiff in this proceeding, ¡mesented 13 the Honorable A. W. Campbell, circuit judge,"an affidavit under the provisions of section 5411,
It cannot be said that there is no merit or force in this contention, but we are rather inclined to take a diffex-ent view of the matter. We regard the statute as remedial. Its obvious purpose is to afford a mortgagor an opportunity to be heax’d upon, and have judicially settled, any dispute between himself and the mortgagee or holder of the mortgage as to the whole or any part of the mortgage debt. By the power of sale in the mortgage, the mortgagor conferred upon the holder of the
These views, if correct, lead to the conclusion that when the judge became judicially satisfied that there was no longer any dispute between the parties, nothing to be litigated, and no reason for the proceeding going into court, he had power to, and might properly, vacate the order which he made on the ground that there was a dispute. While the question is not entirely clear of doubt, we adopt this conclusion as best calculated to conserve the rights of all, and at the same time accomplish the very evident object of the statute. The writ is denied.