19 S.D. 351 | S.D. | 1905
This is an action to determine adverse claims to real property. It was submitted below upon an agreed statement of facts, from which it appears that James Tyler, the owner of the land in controversy, executed the following instrument: “This indenture, made this first day of September, A. D., 1886, between James Tyler, (single) of Miner coun
Our Civil. Code contains these provisions: “Sec. 2042. Mortgage is a contract by which specific property is hypothe-cated for the performance of an act, without the necessity of a change of possession. A mortgage of real property can be created, renewed or extended only by writing, executed with the formalities required in the case of a grant of real property. ’ ’
“Sec. 2044. Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it- is accompanied by actual change of possession, in which case it is to be deemed a pledge.”
The words “other than in trust” were not in the latter section as it was proposed by the New York commissioners. Rep. N. Y. Com’rs. § 1610. They appear to have been introduced by the California code examiners in 1874 for the purpose of preserving the distinction between trust deeds and mortgages then existing in that state. Deering’s Ann. Civ. Code 1886, p. 498. The section as thus amended was adopted in this jurisdiction in 1877. Civ. Code Dak. 1877, § 1724. It seems to be settled in California that all transfers of an interest in real property made only as a security for the performance of another act are not to be deemed mortgages. Koch v. Briggs, 14 Cal. 257; Grant v. Burr, 54 Cal. 298; Bateman v.
The action will be remanded, with directions to modify as indicated in this decision.