Bennett v. Campbell, 5219

CourtSupreme Court of South Dakota
Citation48 S.D. 285,204 N.W. 177
Docket Number5219
PartiesORA D. BENNETT, Plaintiff and respondent, v. J. M. CAMPBELL et al, Defendants, First State Bank of Fulton, Defendant and appellant.
Decision Date03 June 1925
48 S.D. 285
204 N.W. 177

Plaintiff and respondent,
J. M. CAMPBELL et al,
First State Bank of Fulton,
Defendant and appellant.

South Dakota Supreme Court
Appeal from Circuit Court, Miner County, SD
Hon. Alva E. Taylor, Judge

W. H. Seacat, Alexandria, SD
H. G. Giddings, Mitchell, SD
Attorneys for Appellant.

Baldwin & Lyons, Howard, SD
Attorneys for Respondent.

Opinion filed June 3, 1925

[48 SD 286]


Defendants T. M. Campbell and wife, Bertha, gave to plaintiff in 1919 a $13,000 purchase-money first mortgage on real estate in Miner county. January 3, 1921, they gave to defendant First State Bank of Fulton a second mortgage upon the same premises, which recited that it was subject to a prior mortgage to plaintiff in the principal sum of $13,000. October 8, 1921, default existing under the terms of plaintiff's mortgage, and plaintiff being ignorant of the existence of subsequent mortgages, defendants Campbell and wife gave to plaintiff a warranty deed of the mortgaged premises, which deed recited that it was given for the satisfaction of the $13,000 mortgage. Plaintiff surrendered to them the $13,000 mortgage with the note and interest coupons thereby secured. The warranty deed was not recorded, nor was the mortgage satisfied of record. On the same day plaintiff and defendant Campbell entered into a written agreement, reciting the delivery of the warranty deed and the surrender of the $13,000 note, and provided that the deeded premises might be "redeemed" at any time within one year by making certain payments specified in detail in the contract.

On November 12, 1921, plaintiff first learned of the existence of other mortgages. He went immediately to the defendant Campbell,

[48 SD 287]

secured from him the $13,000 note, interest coupons, and mortgage, returned to him the warranty deed of October 8, 1921, and both parties signed the following writing indorsed on the written agreement of October 8, 1921:

"For and in consideration of the sum of $1 and other good and valuable consideration, the within contract is hereby mutually rescinded and the consideration received by each of the contracting parties under the same is to be returned to the other party and each of the said parties is hereby restored to the status which he had prior to the execution of said contract. Dated this 12th day of November, 1921."

Plaintiff thereupon instituted the present action for foreclosure of the $13,000 mortgage having been enjoined from an attempted foreclosure by advertisement.

The complaint is in the usual form for foreclosure. The answer of the defendant State Bank of Fulton is denominated "Answer and...

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1 cases
  • Bennett v. Campbell, 5219.
    • United States
    • Supreme Court of South Dakota
    • June 3, 1925
    ...48 S.D. 285204 N.W. 177BENNETTv.CAMPBELL et al.No. 5219.Supreme Court of South Dakota.June 3, Appeal from Circuit Court, Miner County; Alva E. Taylor, Judge. Action by Ora D. Bennett against J. M. Campbell, the First State Bank of Fulton, and others. Judgment for plaintiff, and defendant ba......

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