10 S.D. 344 | S.D. | 1897
This acftion in equity to set aside fthe foreclosure of a real-estate mortgage by advertisement under a power of sale, and for an accounting, was instituted by a mortgagor against an assignee for the benefit of the mortgagee’s creditors, and resulted in a judgment for the defendant, from which, and an order overruling a motion for á new trial, plaintiff appealed.
Under date April 14, 1888, Ira S. Haseltine and his wife executed and delivered to the Western Farm, Mortgage Company two mortgages, containing the usual power of sale, as
It is urged that the foreclosure is a nullity, for the reason that two separate lots were' sold as a single tract for more than the amount due, and in violation of Section 5418 of the Compiled Laws, which provides that, “if the mortgaged premises consist of distinct farms, tracts or lots, they must be sold separately, and no more farms, tracts or lots must be sold than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest and the costs and expenses allowed by law.” The mortgage was executed to secure a loan with which to partially pay for the land, and erect thereon the buildings collectively designed for, and capable of being used to the best advantage only in carrying on the hotel business. The mortgagor, who had actual notice of the sale, instead of making objection thereto, or an attempt to show inadequacy of price, or bad faith resulting in injury, remained silent until the year of redemption had expired, and then recognized respondent’s title by entering into a written lease for one year, under which he occupied the premises as a lessee of respondent, and became a tenant holding over after the expiration of his term. Were the procedure irregular for the reason assigned, it would be voidable merely, and an application to vacate the sale, not made within a reasonable time, would be regarded with disfavor, and denied upon the ground of laches upon the part of the mortgagor. Trust Co. v. Bradley, 9 S. D. 495, 70 N. W. 648; Marcotte v. Hartman, 46 Minn. 202, 48 N. W. 767; Vigoureux v. Murphy, 54 Cal. 346; Love v. Cherry, 24 Iowa, 204; Cunningham v. Cassidy, 7 Abb. Prac. 183; Roberts v. Fleming, 53 Ill. 196. As the statute under consideration was enacted for the benefit of the mortgagor, and the word ‘ ‘premises, ” in its ordinary sense, means ‘ ‘land, with its ap
The only remaining point worthy of notice is the claim that an assignee for the benefit of creditors is without power to foreclose a mortgage by advertisement, and become a purchaser at the sale. Comp. Laws, Sections 2829, 4666, 5419. An assignee for the benefit of creditors, though not a purchaser for value, acquires the legal title to the property assigned, and succeeds to all the rights the assignor had in respect to things transferred by the assignment, including the power to sell real property, given in a mortgage as a part of the security. Such power may be executed by an assignee for the benefit of creditors, and he is fully authorized, in the exercise of fairness and good faith, to become a purchaser at the sale. In the absence of a statute bearing upon the point, it is well settled that an assignment by a debtor of all his property for the benefit of creditors passes to the assignee everything which is, by its nature, assignable, and no valid reason can be given for withholding the right to foreclose by advertisement a mortgage containing a power of sale executed and delivered to his assignor; and the statute (section 5419, supra) expressly provides that ‘ ‘the mortgagee, his assigns, or their • legal repre
The evidence in no manner tends to support the claim that the contract was usurious, or that the mortgage was foreclosed for an amount in excess of that actually due and collectible according to its terms; and there is no merit in the contention of counsel that the notice oí foreclosure sale was not properly published.
Upon the whole case, we are convinced that the findings of iact made in the court below are fully sustained by the evidence, and warrant the conclusion reached. As no error is presented by the record, the judgment appealed from is affirmed. ►