10 S.D. 535 | S.D. | 1898
This action of forcible detainer was commenced in justice’s court, and certified to the circuit court, wherein plaintiff recovered judgment for possession. Defendant Dowlling appealed.
From the findings of the trial court it appears that defendant Bordeno owned certain realty, which he had contracted to convey to defendant Dowling upon payment of an agreed price. For the purpose of complying with this contract, Dowling applied to plaintiff for a loan, and proposed that it should pur
Defendant complains of nothing except the conclusion of the court that plaintiff is entitled to possession. In this state, ‘ ‘a mortgage does not entitle the mortgagee to the possession of the property, unless authorized by the express terms of the mortgage.” Comp. Laws, § 4358. The clause, ‘‘unless authorized by the express terms of the mortgage,” is not found in the original report of the New York code commissioners. It was undoubtedly inserted by the legislature of California, and thence became incorporated into our Civil Code. It is not consistent with the theory, recognized in all othér parts of our judicial system, that a mortgage merely creates a lien upon the hypothecated property, and should not be given a doubtful or forced construction, for the purpose of permitting mortgagees to obtain possession prior to forclosure and sale of the mortgaged property. Such is the effect, if not the reasoning, of decisions in California, where the statute is the same as here. It is the settled rule in that state that, where a deed absolute in form is made merely to secure the payment of money to the grantee, it is a mortgage, and does not give the right of possession. Raynor v. Drew, 72 Cal. 307, 13 Pac. 866; Smith v. Smith, 80 Cal. 323, 21 Pac. 4, and 22 Pac. 186, 549; Locke v. Moulton, 96 Cal. 21, 30 Pac. 957; Mahoney v. Bostwick (Cal.) 30 Pac. 1020. In this class of cases the deed, although absolute in form, does not convey title, or give possession, for the reason that it does not express the true intent of the parties and the law permits such intent to be shown. Such a deed cannot be regarded for the,purpose of giving the grantee possession, and at the same time be considered a mortgage for the purpose of allowing the grantor to redeem. If it is not precisely what it purports to be, its form ceases to be material, and the intent of the parties merely creates a lien which does not carry the right of possession. Whether the written contract, specifying the amount of, and manner in which, the loan shall be repaid,