11 S.D. 124 | S.D. | 1898
Prior to the commencement of this action to foreclose a. mortgage for some $50,000 on a business block in the city of Deadwood, the insolvent morugagor, James K. P, Miller, died, testate. Shortly after the suit was instituted, the defendants Joseph Swift. E. B. Beecher, and William Swift, executors of the will, were removed and superseded by William Selbie, the duly appointed administrator of the estate with decedent’s last will annexed, who was thereupon by the court substituted in their stead as a party defendant. In addition to the usual hypothecating clause, the mortgage contains the following recital: “Together with all ar.d singular the tenefnents, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof”; and a further provision that, in case of default the mortgagee, “his legal representatives or assigns shall have the right forthwith, after any such default, to enter upon and take possession of the said mortgaged premises,'and to recive the rents, issues,
As there can be no defacto officer without a dejiore office, no receiver without a receivership, and the appointment of a receiver pendente lite creates not only the office, but the officer, neither of which can exist without the other, we cannot concur in the contention of counsel for appellant that, although the federal court never acquired any jurisdiction, Higby and Selbie were de facto receivers, and that the validity of their acts cannot be questioned in this suit by any of the parties interested. It is elementary that no right can be acquired or invaded by reason of the order or judgment of a court having no jurisdiction of the parties or subject-matter; that all such extra judicial acts, together with that which emanates therefrom, being absolutely void, must be held for naught, even when attacked collaterally; and the decision of the circuit court of appeals, supra, is a case in point, and concldsive as to the question of jurisdiction. Then the mortgagor-in his lifetime and his legal representatives thereafter, were in actual, continued possession of the property and its incidents until devested of all interest by a sheriff’s deed executed to the defendant Fred'T. Evans, up
The mortgage provides for a deficiency judgment, but it appears from the evidence, and the court found, that “subsequent to the death of James K. P. Miller, to-wit, on February 24th, 1891, defendants Joseph Swift, E. B. Beecher, and William H- Swift qualified as executors of his last will and testament, and published, in accordance with an order, of the county court of Lawrence county, duly given and made, a notice to creditors, beginning the 4th day of March, 1891, requesting them to present their claims with the proper vouchers to them at the office of A. W. Coe, in Deadwood, S. D., within six months from that date. This the plaintiff failed to do, and he had not prior to the bringing of this action, or at any time, presented the notes sued on in the action, or any claim on account thereof, to said executors, or to their successor, William Selbie, administrator with the will annexed, who had been appointed upon the removal of said executors by the county court.” Upon the foregoing finding, the conclusion that the appellant was not entitled to a deficiency judgment is in full accord with the statute requiring the claim to be presented in such cases within one month after the deficiency is ascertained. Comp. Laws, § 5790. As the-appointment of a receiver could extend only to accruing rents and,profits, and there being no receivership until long after the title became vested absolutely in Fred T, Evans, when the life of appellant’s lien thereon ter
Rehearing granted September 10, .1898. Opinion upon rehearing not yet filed.