American Banking & Trust Co. v. Lynch

• Decision Date: 11 January 1898
• Citation: 73 N.W. 908,10 S.D. 410
• Parties: AMERICAN BANKING & TRUST CO., Plaintiff and respondent, v. J. W. LYNCH, Defendant and appellant.
• Court: South Dakota Supreme Court

10 S.D. 410

73 N.W. 908

AMERICAN BANKING & TRUST CO., Plaintiff and respondent,

v.

J. W. LYNCH, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. A. W. Campbell, Judge Affirmed E. H. Aplin, T. H. Null, W. A. Lynch Attorneys for appellant. A. W. Burtt, L. C. Kemp Attorneys for respondent. Opinion filed Jan. 11, 1898 (Rehearing ordered, March 16, 1898)

HANEY, J.

On August 26 1887, Margaret J. and W. A. Lynch mortgaged to the Maine Mortgage Loan Company, of which the respondent is successor, their dwelling and two lots in Huron, to secure a note of even date for $I,000, due in three years, which mortgage was duly recorded on April 25, 1888. About the 25th day of April, 1888, Hubbard Bros. brought, in Beadle county district court, an action to foreclose a mechanic’s lien on the aforesaid dwelling and lots, against Margaret J. and W. A. Lynch, and on November 11, 1890, recovered a judgment against them for $216.35, and directing the sale of the premises to satisfy the judgment. Execution being issued to carry into effect said judgment, said premises on February 14, 1891, were sold thereunder at public auction, and bid in by Hubbard Bros. for $237.36—the full amount of judgment and costs then due. The certificate of sale issued by the sheriff to Hubbard Bros. became, by due assignment, the property of appellant, J. W. Lynch; and on February 16, 1892, the time of redemption of Margaret J. and W. A. Lynch having expired, and no redemption having been made by them the sheriff issued a sheriff’s deed to J. W. Lynch for said property, which deed was duly recorded on same day in Beadle county register of deed’s office. The respondent was not made a party to the Hubbard Bros.’ mechanic’s lien foreclosure suit. On February 27, 1891, respondent commenced an action in Beadle county circuit court against Margaret J. and W. A. Lynch to foreclose its mortgage. To this suit, Hubbard Bros. were made defendants, and, answering to the complaint, set up their mechanic’s lien against the mortgaged premises, and charged that said lien was prior and superior to the lien of respondent’s mortgage on said premises. On March 11, 1892, on findings of fact and conclusions of law rendered by the referee to whom said cause was referred for trial, and whose report; bearing date February 25, was filed in court February 29, 1892, the court rendered a judgment against Margaret J. and W. A. Lynch for $1,311.61, and directing a sale of the mortgaged premises to satisfy said judgment; and by said judgment the mechanic’s lien of Hubbard Bros. was declared to be prior and superior to the lien of respondent’s mortgage. By this judgment the lien of the mortgage under which respondent claims title to the property in question is made subsequent to the Hubbard Bros.’ mechanic’s lien, through which the appellant claims title to said property. On August 31, 1892, the mortgaged premises were sold under this judgment, and purchased by respondent for the amount of said judgment, and a certificate of sale was duly issued to it by the sheriff conducting the sale. No redemption having...