9 S.D. 187 | S.D. | 1896
This was an action to foreclose a real estate mortgage. Judgment was rendered for the plaintiff, and the defendant Lake county appeals. On January 1, 1887, Murdock J. McGillivray and Adella R. McGillivray, his wife, executed a promissory note, secured by a mortgage on property in. the city of Madison, Lake ’ county, to the American Mortgage & Investment Company, for the sum of $2,000, payable in five years from the date thereof. This note and mortgage were transferred, and, by various assignments, came into the hands of the plaintiff, who is now seeking to foreclose the same. Late in 1894 the said Murdock McGillivray died, intestate, leaving Adella R., his widow, and several minor heirs. Thereafter this plaintiff and said widow were appointed as administrator and administratrix of his estate, and the said widow was appointed guardian of tl^e minor heirs. It is alleged in the complaint that in April, 1895, said note and mortgage were assigned to said Adella R., the widow, as - guardian of said minor heirs, naming them. It is further alleged that said note and mortgage were, in May, 1895, assigned by said Adella R., as guardian of said minor heirs, naming them, to this plaintiffs Norman D, McGillivray. It is further alleged that the defend
The sufficiency of the defense set up in the answer is the only question we shall consider or discuss on this appeal. Assuming, as we must for the purposes of this decision, that the allegations of the answer are true, it would seem that the said Murdock J. McGillivray, up to the time of his death, was the owner of the mortgaged premises; that the personal property tax was duly levied of about $125 against him, for which his real estate was liable, subject to the prior mortgage; and that that mortgage was paid off and satisfied; and that the said plaintiff, and the said Adella R. McGillivray were keeping this mortgage outstanding, in order to defeat the county’s personal property tax lien. If such were the facts, the county was entitled to have the mortgage canceled of record by a proper decree of the court. The lien of the county, like any other lien, was a valid subsisting lien, subject to the prior mortgage only so long as such mortgage lien remained a valid and subsisting lien. Miller v. Anderson, 1 S. D. 539, 47 N. W. 957. But, when the mortgage was paid off and canceled, it ceased to be a lien upon the property, and thereafter constituted a cloud upon the lien of the county for its personal property tax, which it had a right to have canceled of record, in order that its lien might be effectively enforced. The county occupies the same position as any other lien holder, and is entitled to the same right to protection from the court that any other junior lien-holder would have.
The respondent contends that the decision in Miller v. Anderson, supra, establishes, in this state, the rule that personal
The respondent further contends that the county was not in a position to litigate the issues raised by the answer. We are unable to comprehend the force of this contention. The county was properly made a party defendant, and, as we have before stated, occupied the same position as any other junior lien-holder; and, under the facts as stated in its answer, the county was clearly entitled to a cancellation of the mortgage lien. No one would question, we presume, that, if á subsequent mortgagee was a party, under the facts stated in the answer he would be entitled to relief. The theory of the counsel would seem to be that, because the defendant county alleged in its answer that the mortgage was kept outstanding to defraud the minor heirs of the intestate, it was not in a position to litigate that question. But this allegation in the answer may be regarded as surplussage. Eliminate this allegation relating to minor heirs from the answer, and there is still a good defense stated on the part of the county. The allegation of the payment and cancellation of the note, and that the mortgage was kept outstanding in order to defeat the lien of the county for its personal property tax constitutes a good defense on the part of the county. Surplussage in a pleading may subject it to a motion to strike out the redundant and irrelevant matter, but does not render the pleading demurrable or defective as a pleading. The prayer for relief in the answer may also be objectionable in form, but such defect constitutes no ground of demurrer. The court upon a trial will grant such relief as the facts pleaded will warrant, without regard to the prayer for re