10 S.D. 389 | S.D. | 1897
On the 4th day of October, 1887, Sidney Harrington, the defendant Martin’s grantor, executed and delivered to the defendant, the Dakota Loan and Trust Company a mortgage on real estate to secure the payment of his promissory note for $700, and interest, of even date, and due five years thereafter. Plaintiff, the assignee of the mortgagee, brings this action, more than two years after the maturity of the debt, for the purpose of foreclosing the mortgage, and to secure a deficiency judgment against the defendant loan company upon its written guaranty, as follows: “For value received, the
This court having jurisdiction of the case, the view we shall take renders unnecessary a determination of respondent’s motion to dismiss the appeal. We cannot construe this guaranty of collection, limited both as to time and amount, into a continuing guaranty of payment, without making a different contract for parties who have determined the character of an obligation, the terms of which are expressed in clear and concise language. The intention to guaranty the collection of the principal sum within six months after maturity, and the payment of the interest thereon, according to the terms of the bond, is so obvious that no room is left for construction. As a guaranty of collection is a conditional promise, binding upon the guarantor only in case of diligence on the part of the one for whom it is made, the parties were fully authorized to enter into an undertaking by which a period of six months after maturity was definitely agreed upon as a reasonable time within which appellant must proceed against her principal debtor