Bennett v. Campbell

Decision Date03 June 1925
Docket NumberNo. 5219.,5219.
Citation48 S.D. 285,204 N.W. 177
PartiesBENNETT v. CAMPBELL et al.
CourtSouth Dakota Supreme Court

OPINION TEXT STARTS HERE

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 bank appeals. Affirmed.W. H. Seacat, of Alexandria, and H. G. Giddings, of Mitchell, for appellant.

Baldwin & Lyons, of Howard, for respondent.

CAMPBELL, J.

Defendants J. 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 providing 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, 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and in consideration of the sum of $1 and other good and valuable consideration, the within contract is hereby mutually rescinded and the consideration received by each of the contracting parties under the same is to be returned to the other party and each of the said parties is hereby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 Counterclaim,” but asks for no affirmative relief and contains no counterclaim. The answer alleges that on October 8, 1921, plaintiff accepted and received a warranty deed of the premises in full satisfaction of his mortgage. The answer also sets up the mortgage of the defendant Fulton Bank, and alleges that the same is in full force and effect and the indebtedness thereby secured unpaid, but does not ask for foreclosure thereof or that its mortgage be adjudged prior to plaintiff's mortgage; the prayer of the answer being that the complaint be dismissed on the merits, and that the defendant Fulton Bank have judgment for costs. To this answer the plaintiff, voluntarily and without order of court, interposed a reply consisting of a general denial.

The trial court found plaintiff's mortgage to be a first lien on the premises and decreed foreclosure. From this judgment the defendant First State Bank of Fulton appeals.

Appellant assigns errors in support of two principal contentions, which are: First, that respondent, having interposed a general denial by way of reply was limited thereby, and should...

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