152 N.W. 703 | S.D. | 1915
This cause is here on appeal from a decree of foreclosure of a real estate mortgage, and, in addition to the matters presented by the printed record upon appeal, there is also before the court at this time the application of the defendants FI. A. Adebar and Gustave'Adebar, for leave to file a supplemental answer.
To this proposed supplemental answer, plaintiff has submitted a reply, in which the facts alleged in said answer are admitted,. except that the value of the N. E. J4 of section 25 is placed at $8,000.
The mortgage under which the above-mentioned sheriff’s deed was issued was senior to the mortgage’s of plaintiff and Donahoe. The deed to plaintiff, therefore, conveyed the title to this land, freed from the liens of these two mortgages, and the effect of the execution- of this deed was to convey to plaintiff the absolute title to the N. E. Jd of section 25, without satisfying any part of its mortgage or paying any part of the Dona-hoe mortgage. Thus it has, for $1,695, acquired absolute legal title to property alleged to be worth $12,800, and which it admits to be worth $8,000, and is now in a position to apply the other quarter section to the payment of its judgment, subject, of
“Were the defendants, upon the redemption of the property by the plaintiffs from the sale under the Peck mortgage, entitled to have their indebtedness- diminished to the extent of the difference between the value of the property redeemed at the time of the redemption and the amount paid by plaintiffs to redeem the property from the sale?”
It was held- that defendants were entitled to such credit. This doctrine was applied in Scripter v. Bartleson (C. C.) 43 Fed. 259, and in Sprague v. Martin, 29 Minn. 226, 13 N. W. 34, where it is said:
The question here presented is identical with that in Work v. Braun, supra, and the.same rule should be applied.
While the plaintiff purchased the certificate of sale executed upon the foreclosure of the prior mortgage and acquired his title in that manner, it was done in the exercise of its right of redemption for the purpose of protecting the lien of its subsequent mortgage, and it should be treated as a redemptioner. Advance Thresher Co. v. Rockafellow, 16 S. D. 462, 93 N. W. 652. The effect, however, was not, in all respects', the same as though plaintiff had proceeded to redeem in the manner set out in the •statute. Had it redeemed in the statutory manner, the effect would have been to add to plaintiff’s mortgage debt the amount paid to redeem. In order, then, to have applied the mortgaged property to the payment of its debt, it would have been necessary to have issued execution and caused a ‘ sale of the mortgaged property. The mortgaged property is'alleged to have been worth $12,800, and it is presumed that, if it had been sold in the usual manner, it would have brought its full value. The result would have been that, after paying the amount of plaintiff’s debt, including the •amount paid to redeem, there would have been a substantial surplus for the defendant H. A. Adebar. Plaintiff had no right, in any event, to- more than enough to satisfy its debt, with interest and costs, and if by proceeding as it did, it has taken more than it was entitled to, it should make restitution to the extent of the surplus.
The defendants H. A. Adebar and Gustave Adebar are entitled to have, plaintiff’s claim against defenadnt H. A. Adebar satisfied to the extent of the value of the N. E. of said section 25, at the time of the execution of the said sheriff’s deed, and defendant H. A. Adebar is entitled to judgment against the plaintiff to the extent of the excess in case the value of the land at the time of the execution of said sheriff’s deed exceeded the
The right to file a supplemental pleading is recognized by ■the statute. 'Section 154, Code Civ. Proc. By the provisions of that section, plaintiff or defendant, by leave of court, may file a supplemental complaint, answer, or reply, as the case may be, alleging . material facts that occurred after the filing of the former complaint, answer, or reply. The language of this section is broad, indeed. It not only permits the pleading of any fact that occurred subsequent to the former pleading, but it contains no limitation as to the time when supplemental pleadings may be filed. S-o far as any restrictions are to be found in the statute, the supplemental pleading- may be filed in a proper case
“* * * A supplemental 'bill may also be filed, as well after as before a decree; and the bill, if after a decree, may be, either in aid of the decree, that it may be carried fully into execution, or that proper directions may be given upon some matter omitted in the original bill, or not put in issue by it, or by the defense made to it.”
In the second paragraph of the syllabus in Drought v. Curtis et al., 8 How. Prac. 56, the rule is stated as follows:
“When the facts sought to be pleaded in a supplemental answer amount to an entire satisfaction of the cause of action, and, if established, would utterly extinguish the plaintiff’s right to prosecute it, it is the duty of the court to allow the motion;, and it will make no difference whether the application be made at the earliest day or not.” ' [¶]
In State ex rel. v. District Court of Ramsey County, 91 Minn. 161, 97 N. W. 581, it is held:
“A supplemental pleading may be allowed after judgment as well as before, -in the furtherance of justice.”
And, for a general discussion of the subject and citation of authorities, see 31 Cyc. 506-509.
The statute, as well as the rule, permits the filing of supplemental pleadings at any stage of the proceeding before the judgment of the trial court becomes final, whenever it may be necessary in order to do justice between the parties.
The judgment of the lower court is affirmed. The defendants are granted leave to serve and file in the circuit court the supplemental answer as prayed for.. The circuit court • is directed to ascertain the value of said N. E. J4 of said section 25 at the time of the execution of the said sheriff’s deed upon foreclosure and to credit upon plaintiff’s judgment, as of the date of such deed, the value of said land as so found, less the amount it paid to redeem said land and interest on such amount paid date of s'aid deed; and, if such court shall find the amount of such credit to exceed the amount due plaintiff under its judgment
There is an apparent error, in the supplemental answer. Plaintiff is alleged to have a mortgage on the N. E. Ya. °f section 25, without making any mention of the other tract of land, while, from the reply-of the plaintiff and the other papers in the record, the mortgage appears to cover both tracts. We mention this in order that the error, if there be an error, may be cured by amendment in the trial court.
Remanded for further proceedings, as herein suggested.