15 S.D. 432 | S.D. | 1902
This appeal is from an order sustaining a demurrer to the answer on the ground that it fails to state a defense. Defendant having elected to stand on his 'answer, judgment was rendered in favor of the plaintiff, from which the defendant appealed.
If Parszyk was a person entirely without understanding when the deed to plaintiff was executed, title to the land in controversy was not conveyed from the former to the latter. Comp. Laws, § 2519. If he was then a person of unsound mind, but not entirely without understanding, his incapacity not having been judicially determined, the title passed, subject to rescission. Id. § 2520. If Parszyk belonged to the first-mentioned class of persons, the «title was in fact in him when the mortgage was executed, independently of the default judgment. While record evidence of a transfer- may under certain circumstances be conclusive, the recording of an instrument or judgment affecting real property in the office of the
The judgment being erroneous, but not void, and having been entered when defendant’s mortgage was executed, the consequences of its subsequent vacation or reversal in the due course of litigation remain to be considered. Though it was not vacated by the order opening the default, the dismissal of the action operated to set it aside. The default was opened within the time allowed by law, and such further proceedings were had that the judgment ceased to exist. The action terminated in favor of the defendant. There was, in effect, a reversal of the judgment in due course of legal procedure, subsequent to the execution of defendant’s mortgage, and the question arises, what was the effect of such reversal upon the rights of the mortgagee? It certainly will be conceded that whatever rights to the mortgaged property were conferred on the mortgagor by the judgment were, as to him at least, restored by its reversal. Nearly all the authorities hold that, where the plaintiff purchases the property of the defendant, at a sale under a judgment or decree, his title will be defeated by subsequent reversal. It is also a rule nowhere disputed that third persons, purcasing at a sale made'under the authority of a judgment or decree, not suspended by any stay of proceedings, thereby acquire rights which no subsequent reversal of such judgment or decree can in any respect impair. Freem. Judgm. §§ 482, 484. The latter rule rests on grounds of public policy. It is intended to encourage bidding at
As heretofore suggested, decisions involving judicial sales are not applicable to this appeal. Therefore many authorities cited by appellant’s counsel require no consideration. It was held in Nebraska that where a district court enters a decree quieting title to real estate in a party to the action, and such party sells and conveys it to an innocent third person for a valuable consideration, and after-wards the decree, not having been superseded by bond, is reversed in the appellate court, such purchaser will not be affected, by the reversal. Parker v. Courtnay, 28 Neb. 605, 44 N. W. 863, 26 Am. St. Rep. 360. The opposite conclusion was reached by the supreme court of Minnesota in an opinion wherein the reason of the rule which protects purchasers at sales made under executions of judgments is stated with accuracy and clearness, and wherein it is shown that such rule has no application to persons who purchase from the plaintiff in actions to quiet title. Lord v. Hawkins, 39 Minn, 73, 38 N. W. 689. The Nebraska decision will be found to rest largely upon an early Ohio case strikingly analogous to the one at bar. It was there held
We think the learned circuit court did not err in sustaining the demurrer to defendant’s answer, and its judgment is affirmed.