7 S.D. 476 | S.D. | 1895
From an examination of the evidence introduced upon the part of plaintiff under his complaint in this action, which is to foreclose a mortgage upon real property, and procure a decree adjudging a certain satisfaction of said mortgage to be void and of no effect because entered by mistake, accident and without authority, the following material facts are disclosed: The mortgage was executed by the defendants Hugos on the 24th day of July, 1888, and duly recorded, to secure their promissory note to the plaintiff for $700, of even date therewith. On the 21st day of July, 1889, John G. Hugos mortgaged the same property to the defendant Swenson, to secure a note for $533, and this mortgage immediately went to record. Plaintiff’s agent, with whom all business relating to
The undisputed evidence shows, and the court instructed the jury, that no part of the amount evidenced by the $700 mortgage has ever been paid. In fact, it is clear that the Hugoses never paid plaintiff anything upon any indebtedness, and at the trial they offered no defense. Immediately upon obtaining actual knowledge of the existance of the Swenson mortgage, which by reason of the abstractor’s mistake in recording the satisfaction of the mortgage for $700, became apparently a superior lien upon the land, plaintiff’s agent, for the sole purpose of indemnifying
From an examination of the entire record, and the undisputed testimony of witnesses, which support and fortify the controlling facts, the substance of which is here produced, we are disposed to conclude that the special findings of the jury are unsupported by the evidence, and that the decree of the court entered thereon, denying the relief for which plaintiff prayed, and dismissing his action, with costs in favor of the defendant Swenson, is cpntrary to both the law and uncontroverted facts.
Concerning the deed from Hugos to Church, which both intended as a mortgage, the latter testified: “The deed was not made in satisfaction of the i nd ebtedness. There was no money paid to me. This deed was for the benefit of the company, not for my individual benefit. '* * * Mr. Hugos has been in possession of the land all the time, as far as I know. * * * He was in default in this $700 mortgage, and as further security I had him deed the land over to me. * * * Mr. Hugos had borrowed money of the company and had never paid a cent of interest, and no taxes from the beginning, and we could not allow it to run in that manner any longer, and he gave us a warranty .deed as collat
In response to questions submitted by the court to the jury, it made and returned special findings that “there was nothing due between the parties; that the deed to Church extinguished the debt, that Swenson had actual notice of plaintiff’s mortgage, that no mistake in filing lease was made; that Hugos has been in actual possession of the land since 1888, but not as owner all the time; that there was an agreement by which Hugos was to transfer the land, and all the debt discharged. The above findings, except as to the continuous possession of Hugos, and Swenson’s actual knowledge of. the $700 mortgage, are contrary to the undisputed evidence, and should have been disregarded.
A motion for judgment in plaintiff’s favor, notwithstanding the findings, was, in our opinion, improperly overruled. The case involves the application of a rule of equity so familiar that citation of authorities or further discussion would be seviceable to none. The judgment of the trial court is reversed, and a new trial ordered.