20 S.D. 328 | S.D. | 1906
This is an action to foreclose a certain trust deed executed in April, 1881, made to secure a certain promissory .note payable on or about the ist day of January, 18&6, and to cancel certain attempted foreclosure proceedings of the said trust deed, by advertisement made in the year 1888, and all proceedings had therein, for the reason that said proceedings were irregular and void. The action was commenced on April 6, 1901, by the plaintiff and respondent, Ara D. Sprague. The trust deed was executed by Jacob Lovett to E. S. Ormsby as trustee; the note being made payable to order of David De Shields, the beneficiary named in said trust deed. In November, 1881, Jacob Lovett died, and Richard Lovett, defendant herein, was appointed administrator of his estate. Prior to January x, 1886, when the note became due, one Johanna McCarthy became the owner of the premises, and, being unable to take up the note and trust deed, she applied to the .plaintiff to advance the money and take up the same for her, and he thereupon advanced the amount due upon, the note and trust deed, amounting to $436, and forwarded that sum to Ormsby, the trustee named in the trust deed, who, it seems, forwarded the same to Boston, where the note was then held, and the note and trust deed, with the assignment by Ormsby, were returned to the plaintiff, who claims to be, and the court finds since has been, the owner and holder of said
It is contended by the appelants that the court erred in permitting the plaintiff to amend his complaint on the trial by setting up the assignment of the trust deed by David De Shields, payee in the-note and beneficiary in the said trust deed, and also the assignment of the same made by said J. J. H. Gregory, who was the owner and holder of the note and trust deed at the time of the alleged transfer of the same to the plaintiff, which assignments were execvtted subsequent to the commencement of this action. Upon the note and interest coupon unpaid appears the word “Paid,” stamped thereon by a firm of brokers in Boston who were acting as agents of Gregorv in the receipt of the money alleged to have been paid by the plaintiff and forwarded to them by Ormsby,’trustee named in the trust-deed; and the appellants insist, therefore, that the note was paid' and could not be purchased by the plaintiff. They also contend that the note and trustdeed were barred by the statute of limitations,, which they claim was 10 years as. applied to this transaction, and they also contend that the defendants were entitled to the property under and by virtue-of the tax deed before referred to. As before-stated, the court finds that the plaintiff actually advanced the money to Johanna McCarthy as a loan to her, and took an assignment of the trust deed from Ormsby in good faith, believing at the time-that he was acquiring a good legal title to the note and trust deed, and that the plaintiff received the note and unpaid coupon and trust deed, and tnat they have since remained in his possession or under liis control, and concludes that he is the owner and holder of the-same and entitled to foreclose the same.
We are inclined to take the view that the court was right in-its conclusion that'the plaintiqff was the owner and holder of the note and coupon and the trust deed independently of 'the alleged as-
The last and principal contention of the appellants is that they were entitled to the property under and by virtue of the tax deed ; but this deed was, in our opinion, properly held invalid by the trial court. The court, by its finding No. 15, found ¡numerous irregularities in connection with the issuance of the tax deed; but in the view we take of the case it will not be necessary to set out this finding or "discuss the various irregularities referred to by the court as rendering the tax deed invalid. The tax deed in the case at bar is-practically the same in form as that given in the case of Reckitt v. Knight, 16 S. D. 395, 92 N. W. 1077, in which this court held that the tax deed was void on its face:
Rinding no error in the record, the judgment of .the court below, and order denying a new trial, are affirmed.