6 S.D. 509 | S.D. | 1895
This is an action to foreclose a mechanic’s lien created upon a certain dwelling house situated upon a tract of land previously mortgaged by the defendant Herker to the defendant Graves, and for the construction of which plaintiff furnished all the material under a contract made and entered into immediately after the loan was negotiated, and the mortgage given to secure the same was executed and recorded, and which was subsequently, and before the commencement of this suit, foreclosed, and ,the premises described therein were sold by advertisement under a power of sale to the defendant the American Investment Company. The case was tried without a jury, and the court found that the mechanic’s lien upon the building was prior and paramount to the lien of the mortgage, and it was adjudged and decreed that said building be sold in satisfaction of the amount due plaintiff upon its claim secured thereby. This appeal is by the defendant American Investment Company, and its counsel maintain that the decree should be reversed, because plaintiff, in its complaint, alleges that its lien upon the entire premises is superior to defendant’s mortgage, and demands judgment for the foreclosure of the same, and prays that the building, and the land upon which the same is situated, be sold in satisfaction of the amount claimed to be due thereunder. As this objection was neither raised in the court below nor assigned as error, we pass the question with the observation that a demand for excessive relief does not defeat a recovery of that to which a party is found to be entitled under the pleadings and proof, and, as the complaint before us js amply sufficient to justify the claim, the contention is without merit. That plaintiff, subsequently to the execution of the mortgage, furnished all the material for the erection of the entire building, and filed its lien within the time provided by law,