23 S.D. 442 | S.D. | 1909
This-is an acfion commenced by plaintiff, F. W. Kammann, against the defendants, Lott Lee Barton and H. F. Hunter, to foreclose a real estate mortgage. The complaint is as follows: “Plaintiff alleges: That on June 13, 1889, defendant Lot Lee Barton was indebted to plaintiff in the sum of $237, evidenced by two promissory notes dated March 6, 1889, one for $228, one for $9, both due September 6, 1889, bearing interest at 12 per cent, per annum after maturity, and on June 13, 1889, defendant Barton, to secure said notes, made his mortgage deed, whereby he sold and conveyed to plaintiff the S. W. J4 of sec. 32-120-63, tobe void upon the payment of said notes. That said mortgage contained a power of sale in the usual form, and was recorded. That the plaintiff is still the owner of said mortgage, and the same is due and unpaid. That plaintiff commenced foreclosure by advertisement, but has been compelled to foreclose by action. That in August, 1905, defendant Hunter commenced an action in this court against this plaintiff to quiet title in himself in said premises. That this plaintiff, answering, alleged the making of said mortgage, etc. Thai-said action was tried to the court on January 10, 1906. Said court found, adjudged, and decreed .that defendant in that action (the plaintiff in this action) had a valid lien on said land by virtue of said mortgage to the amount of $701.88 as more fully appears by the record and papers in said action. Wherefore plaintiff prays judgment against said defendant (1) for $701.88, and interest on said sum from January 10, 1906, and $7 damages sustained by
The only evidence offered by plaintiff in this case in proof of the allegations of the complaint was the mortgage and the judgment roll, consisting of summons, complaint, answer, reply, findings, and judgmeiijt in the former acti.on of H. F, Hunter, plaintiff, y. F. W. Kammann defendant. From this judgment roll it appears that plaintiff Hunter brought suit against the .defendant, Kammann, to -quiet title to S. W. Jd 32-120-63, plaintiff alleging ownership and ■ possession in. himself, and that defendant, Kammann, claimed to have some interest in or incumbrance upon said real estate adverse .to plaintiff. In that action defendant answered, alleging that on June 13, 1889, one Lot Lee Barton was the owner of said premises and being indebted to defendant in the sum of $237 and interest due September 6, 1889, to secure the payment thereof, executed and delivered to defendant a real estate mortgage upon said premises containing a power of sale, and to this answer the plaintiff in that action replied by a general denial and also by setting up the statute of limitations against the notes and mortgagee, and also alleged that said notes were give without consideration, and that said notes were not executed and delivered to defendant, Kammann. On the trial of the former action the court found: “That the plaintiff Hunter was the owner of said land, subject, however, to a mortgage lien thereon in favor of defendant, Kammann; ..that Hunter acquired title by warranty deed from Barton August 13, 1898, and that Barton acquired title from the United States; that on June
The defendants, the appellants in this action, now contend that there was no sufficient evidence to sustain the said findings and judgment; that there is no evidence to show, the delivering of the promissory notes and mortgage on which the judgment is based; that there is no evidence to support the finding that “all the issues in the former case of Hunter v. Kammann touching the making and delivery of said notes and mortgage '.and the question of the bar of the statute of limitations, were tried, determined, and adjudicated in said action.” In this contention we are of the opinion that appellants are correct, and especially as to the question of the statute of limitations. There is absolutely no evidence as to what was litigated or adjudicated in the former action other than the natural inference that arises from the fact of a judgment in favor of the defendant, but an inference of this character must arise as a necessity in order to substantiate the judgment, and, while the court must have found as a matter of necessity that the
Again, in this' case, the plaintiff by his complaint demanded personal judgment against defendant Barton, and a personal judgment has been rendered against him in this action for the amount of the notes and interest and costs. Barton was not a party to the former action, and the judgment in that action is not res adjudi-cata as to him.' Barton does not stand in privity to Hunter. ITe does not claim anything in this action through or under him. Gilman v. Carpenter, 22 S. D. 123, 115 N. W. 659. A grantee of real estate under some circumstances stands in privity to his grantor, but the grantor does not stand in privity to the grantee. 23 Cyc. 1257. The former judgment in the case, of Hunter v. Kammann is not evidence against Barton as to the execution and delivery of the notes and mortgage, and consequently there is- no evidence in the case that would warrant any judgment against Barton. Recitals in the mortgage are' not sufficient. Bruce v. Wanzer, 18 S. D. 155; 19 N. W. 1102. If Barton in 1898 conveyed by warranty deed to Hunter, subject to the mortgage, then Bárton would have no interest in the foreclosure of the mortgage lien against the land, as he has parted with all his interest therein and could not be heard' to complain, as he would not be a party in interest, excepting in case the land sold for less than the amount of the personal judgment, in which- case a portion of the personal judgment would still stand against him. If Barton conveyed to
The judgment of the circuit court, is reversed, and a new trial ordered.