186 N.W. 562 | S.D. | 1922
Action brought to foreclose a real estate mortgage securing two notes, both dated March i, 1919, one due 'March 1, 1921, the other due March 1, 1929. ' In the complaint upon such foreclosure, plaintiff sought to recover, not only the principal alleged to be due upon said notes, but some overdue interest on same. This action was not instituted.until after March 1, 19x9, when one of said notes became due. The mortgage .provided that, in case of default in the payment of the principal sum or any part thereof, the whole principal and interest shall, at the option of the holder, become d'ue and payable; and the complaint alleged that plaintiff had exercised the option and declared the whole sum due and payable. Attached to the complaint was a copy of the mortgage and an assignment thereof to the plaintiff. In such assignment there did not appear the address of the as-signee. -Defendants demurred to the complaint upon the ground that it did not state a cause of action. Such demurrer being overruled, defendants have appealed from the order overruling same.
*118 “No interest shall become due and collectible by the mortgagee or owner of any mortgage upon any real estate in the state of South 'Dakota • until the provisions of the preceding section have been complied with.”
Appellants contend that it is the clear intent of the Legislature that the word “interest,” as used in said section, should refer, not merely to the amount that is allowed by contract or statute for the use, forbearance, or detention of money — its ordinary meaning — 'but that it has a broader meaning therein, being used as the equivalent of “share” or “part” of the debt secured; in other words, that there is no share or part of even the principal debt “due andi collectible” until the assignee’s address properly appears of record. With this contention we cannot agree. The effect of section 1572, where same is applicable, is to work a forfeiture of that which otherwise would be due under a contract. Section 6, R. C. 1919, provides that words in statutes are to be understood “in their ordinary sense, except when a contrary intention plainly appears.” Certainly, in the light of section 6, no court would be justified in placing such a construction upon a section designed to work a forfeiture as would give to any word in suoh statute any other than its usual meaning, and, by so doing, extend the operation of such section so that it would apply to other than what is ordinarily understood as “interest.” We deem the purpose of sections 1571 and 1572 to be perfectly plain. They were enacted to furnish protection to the mortgagor so that, when interest upon his indebtedness becomes due, there will be accessible to him reliable information as to both the name and residence of the party entitled to receive payment of same.
We express no opinion as to whether interest may be included in a judgment of foreclosure in this case if rendered upon the facts disclosed by the complaint. The complaint states a cause of action for the foreclosure of the mortgage for the principal; therefore the trial court rightfully overruled the demurrer to the complaint.
The order appealed from is affirmed.