13 S.D. 383 | S.D. | 1900
This is an action in forcible entry and detainer, originally commenced in a justice’s court, but, upon an answer being filed claiming title to the property by the defendant, it was certified to the circuit court, where the case was tried by the court with a jury, and a verdict directed in favor of the plaintiff. Prom the judgment and order denying a new trial, defendant has appealed to this court.
The facts may be briefly stated as follows: In February, 1895, Prank A. Keys and the defendant, Hattie E Gans, who was then his wife, executed to the plaintiff a promissory note for the sum of $800, due and payable on the 12th day of January, 1896, and secured the same by a mortgage on the property occupied by himself and the defendant, situated in the city of Pierre. In December, 1896, the plaintiff foreclosed said mortgage by advertisement, under the power of sale contained in the mortgage Before the expiration of the first year of redemption, the defendant paid the interest as provided by statute, and thereupon the p uiod of redemption was extended for the second y'jar. On the 1st day of February, 1899, no redemption having been made of said premises, a deed was issued by the sheriff of Hughes county to the plaintiff and respondent herein fur the mortgaged premises. On the 10th day of February, 1899, a notice to quit and vacate the premises was served upon the appellant, and, she failing to vacate the same, this action was commenced in the justice’s court, as before stated. Numerous errors are assigned, but we shall only discuss such of them as are pressed in appellant’s brief.
The appellant contends, first, that a mortgage given by a husband upon a homestead, and signed by the wife, is void and cannot be foreclosed in this state, for the reason that the fore
Appellant calls our attention to the provisions of Chapters 76 and 77 of the Laws of 1891, and contends that thesepróvisions have materially changed the law of this state; but, in the view we take of them, they do not affect the question now under consideration.
It is further contended on the part of the appellant that the court erred in sustaining the objections of respondent to a number of questions propounded to the appellant when a witness on her own behalf, which were, in effect, as to whether or not she had acknowledged the mortgage in controversy before one T. H. Conniff, as notary public. The mortgage itself contains the certificate of T. H. Conniff, under his seal as notary public, certifying that on the 12th day of January, 1895, the said appellant, under her then name of Hattie E. Keys, appeared before him and duly acknowledged the mortgage. The testimony of the witness was apparently offered for the purpose of impeaching this certificate of the notary. The decisions of the courts are not in harmony upon the question of the admissibility of evidence to contradict the certificate of the notary in any case, and we do not deem it necessary to decide that question in this case. It is insisted on the part of the respondent that, as it is conceded the appellant signed the mortgage with her
But there is another ground upon which the court’s ruling can be sustained. The mortgage had been in existence about four years. The appellant had paid the interest and secured an extension of the time for redemption under the statute, and, so far as the record discloses, prior to the filing of the answer in this case the appellant had made no objection to the mortgage, but had apparently recognized it as _ valid and binding upon her. Under such circumstances she is estopped from claiming the mortgage was not properly acknowledged by her. In Norton v. Nichols, 35 Mich. 148—a similar case — the supreme court held both husband and wife estopped from impeaching
, It is further contended by the appellant that the mortgage was not delivered by her, but as she joined in the execution of the same with her husband, Frank A. Keys, and he delivered the same, such delivery will be presumed to be with her consent. De Arnaz v. Escandon, 59 Cal. 486; Baldwin v. Snowden, 11 Ohio St. 203. In De Arnaz v. Escandon, supra, the supreme court of California says: ‘‘Being conclusively bound by the certificate of acknowledgment, which shows her knowledge of the contents of the deed, and having permitted her husband to take and use it according to his own judgment, the wife has no right to complain that he delivered it in accordance with its terms and manifest purpose. ‘Under such circumstances,’ as said by the court in the case last cited [Baldwin v. Snowden, supra], ‘a delivery by him must bind her as well as himself. The grantee may properly regard her execution and acknowl: edgment of the instrument as evidence of her consent to its
It is next contended by the appellant that the court erred in admitting in evidence the auctioneer’s affidavit, sheriff's certificate of sale, sheriff’s deed, and also the certificate of the payment of interest and interest in advance. These instruments were objected to on the ground that there had been no entry into possession by the mortgagee prior to the alleged foreclosure, and that the officers’ affidavit and certificates were insufficient, and that the officer making the sale made no indorsement upon the note and mortgage of the amount received at the sale. It is insisted on the part of the 'respondent that the question that there was no entry into possession before foreclosure was not raised at the trial, and is made by appellant for the first time in her brief in this court. But whether raised or not in the trial court is not very material, under the view we take of the question. In some states foreclosures are instituted by an entry upon the property, but in this state no such method of foreclosure is provided. Hence the term “entry,” used in the mortgage in this case (probably inadvertently copied from some old form book), is without meaning under our system. The failure of the respondent to perform the idle ceremony of making an entry upon the property constituted no ground for excluding the various instruments offered -in evidence. Neither did the fact that the sheriff omitted to indorse
It is further contended on the part of the appellant that the sheriff’s deed was void for the reason that at the time it was executed the respondent had extended the time of redemption, and that that time had not expired, It appears from the evidence that some time prior to the expiration of the last year of redemption, the appellant’s attorney and the agent for the respondent in the foreclosure proceedings had several conversations in regard to extending the time of redemption. It is claimed that there was an understanding between the said agent and the appellant’s attorney that the period of redemption should be extended 20 days. No written agreement was entered into, and it is not shown that the agent had any authority to enter into this agreement. Notwithstanding the alleged agreement, the sheriff’s deed was executed soon after the regular time of redemption had expired by law. We are inclined to take the view that the authority of the agent to foreclose the mortgage did not authorize him to extend the period for redemption, and, assuming that there was such an agreement on the part of the agent as claimed by the appellant, in the absence of competent proof that the agent was specially authorized to make such an agreement the respondent was not bound.
It is further contended on the part of the appellant that the court erred in excluding evidence offered by the appellant