9 S.D. 137 | S.D. | 1896
This was an action to foreclose a mortgage, and to cancel two certificates of sale made on a foreclosure by advertisement. Judgment was rendered for the plaintiff, and from the judgment and order denying a new trial the defendants appeal.
The facts, briefly stated, are that defendants Haskins and wife executed a note and mortgage to one C. A. Kibbling, bear
It appears from the evidence that Faust had, for some years prior to this sale, been the sheriff of Sully county. It also appears that, in previous years, Walworth, as attorney for various parties, had foreclosed mortgages in Sully county, and that Faust, as sheriff, had made the sales. Walworth, at the time of giving the notice of sale, and at the time of the sale, had no knowledge that there was any question as to Faust’s title to the office of sheriff. Walworth forwarded the notice of sale to Mr. J. H. Gropengeiser, then editor of the Sully County Watchman, a newspaper published in that county, and requested him to have Mr. Faust make the sale and to bid in the property for the plaintiff for the full amount due on the note — principal, interest and costs. Mr. Gropengeiser, when the time for publication had expired, handed the notice and affidavit of publication to Mr. Meloon, an attorney in Sully county, and requested him to attend the sale and bid in the property for the plaintiff. Mr. Meloon took the papers to Mr. Faust, who made the sale as sheriff, and Mr. Meloon bid in the property. Prior to the sale, Mr. Smith, as sheriff, requested the papers from Mr. Meloon, and also from Mr. Gropengeiser; but they both refused to allow him to have the notice of sale and affidavit of publication, and informed him that they did not wish him to make the sale, and while he was making the sale Mr. Meloon protested against the sale. The findings of the court are, in our opinion, therefore, fully sustained by the evidence, as to the facts found; and the conclusion of law that the sale by Smith was invalid, and of no force and effect, will be subsequently referred to.
The court finds that Simmons and the intervening defendant, who claims to be grantee of the said Simmons, had full notice of all the facts connected with the sale. In the view we take of the case, it will not be necessary to determine whether or not Smith had authority to sell, under the -statute, as we are
There were a large number of errors assigned in the record, and numerous questions raised in the briefs of counsel, which have not been overlooked; but, in the view we have taken of the case, we have not deemed it necessary to discuss them. The judgment of the circuit court, and order denying a new trial, are affirmed.