15 S.D. 391 | S.D. | 1902
Plaintiff had judgment as prayed for in this action to reform and foreclose a real estate mortgage executed on the 14th day of January, 1897, by the defendants David M. and Sadie E. Fell, to secure an indebtedness of $1,200, and this appeal is by the defendants Sayer and. Edwards, who were subsequent purchasers of the land which the parties actually intended to mortgage, but, by inadvertence, failed to correctly describe. While the S. W. Y section 6, township 124. N., of range 78, in Walworth county, is the land of which David M. Fell was the owner and in possession when the mortgage was executed, by mistake the notary public who wrote the mortgage described the premises a? the S. E. Ya of such section, township, and range (a timber-culture entry, in which the Fells had no interest) ; and neither party to the instrument dis
Neither appellant was sworn in his own behalf at the trial, and there is nothing to controvert the following testimony of D. M. Fell, admitted without objection: “Q. Who drew up the deed to the land from you to Sayer? A. Sayer himself. Q. At the time he drew up this deed, was there any conversation between you and Sayer as regards this mortgage? A. Yes sir. Q. What conversation was there? A. Well, I told him there was a mortgage on the land, and he says: ‘Yes; I have seen the mortgage recorded.’ I says to him, ‘I must go and telephone up and see if Peters recorded his mortgage’; and Mr. Sayer says, ‘Yes; he has recorded his mortgage. I have seen it’- — and gave the exact date, interest, etc., on the mortgage; and I supposed, as a matter of course, the mortgage was recorded, but, instead of that, I found out that it was recorded on the southeast instead of the southwest. * * * Q. At the time you completed the transaction, did you have any discussion in regard to the consideration? A. Yes, sir. Q. What was said at that time? A. He said he would give me $1,200 for the land, or he said he would pay off Peters’ mortgage. I should say he agreed to pay off Peters’ mortgage and give me $25. He assumed the
We think the evidence sustains the trial court in finding facts fatal to Mr. Edwards’ claim of absolute ownership; and yet there are circumstances warranting a court of equity in requiring respondent, as a condition precedent to the reformation and foreclosure of his mortgage, to relieve Edwards from pecuniary loss by the reimbursement of $155, together with interest, paid by him to Sayer in consideration for the land. The case is therefore remanded' to the trial court, with the direction that its decree be made to conform to the view herein expressed; and, as thus modified, the judgment appealed from is affirmed.