168 N.W. 762 | S.D. | 1918
This is 'a suit in equity, brought in Tripp- county by plaintiff to redeem' a quarter section of land from mortgage foreclosure sale.
On 'tire 1st -day of October, 1910, the -owners' of the land in question -gave defendant their promissory note for the -sum of $1,200, payable on the 1st day -oif July, 1915. S'aid not bore interest at the rate of 6 per cent.’ per annum', which -interest was evidenced by coupon notes attached thereto’. The mortgage in question Was given to secure the payment of this note and interest. The note contained 'the following provisions.
“-This -note ltd draw 12 per .cent, interest per annum .after -default in- payment of -principal or interest.” .
“Provided1, however, that in case of'-default in -the payment of either interest, the -whole indebtedness secured by this indenture shall-'draw interest at. the fate of 12 per cent, per annum, according to the terms of this indenture. * * * The mortgagors agree that a failure to pay any of. .said -money, either principal-or interest, when due, or ai failure to pay the taxes' or to insure the 'buildings as> herein' -agreed, or a failure to comply wiith any of the foregoing conditions or agreementei shall pause the whole sum, bath! principal and interest, to .become diue and Collectible at once, and this mortgage may thereupon be foreclosed1 immediately by -action or by advertisement * * * foir the whole of said interest and costs.”
The mortgagors defaulted in the .páymient of the installment of interest that fell due on thceTst day of July, 1914, and;, on the 2.5th day of the following February, the mortgagee proceeded to1 foreclose said mortgage by 'advertisement. At the for-eidosure sale, the mortgagee bid in the mortgaged property for 'the full .amount then due, including principal, interest, an'd) costs. No attempt wa© marite to redeem' from1 said sale; but on the last 'day of the period' of redemption, appellant, having purchased) Ithe mortgagor’s equity in the land, undertook to extend* the period' of redemption- as provided far by -section 646, Go,dé of Civil Procedure. At the! time of the execution- of the note and mortgage, .said section contained the following 'provision:
“That if alt the expiration of one year from the date of sale the mortgagor or his successor in interest shall -pay all taxes due on the land)'and all interest d*ue under the provisions of the mortgage and- interest for -one year in advance, then 'the time of -redemption shall be extended' for one year. Such payment shall be evidenced by the certificate of the sheriff or holder of the certificate of sale duly -acknowledged, which' shall be recorded -in the office of the register of -deeds and such certificate, or the record thereof, or á certified of the record, -shall be conclusive proof of -such payment.”
In his attempt'to' extend ithe period ’of redemption, appellant paid all the taxes due on the land- at that time- and paid! the interest that had' accrued on the principal -prior to the -date of ithe foreclo
The judgment and order appealed from are reversed, and the cause is remanded to ¡the trial -court, with, -directions to that- court to ¡ascertain the correct amount necessary to effect 'a -redemption and to grant appellant the relief prayedl for in hi-s complaint.