Carpenter v. Ingalls

• Citation: 3 S.D. 49,51 N.W. 948
• Parties: CARPENTER, Plaintiff and respondent, v. JAMES L. INGALLS, Defendant and appellant.
• Decision Date: 05 April 1892
• Court: South Dakota Supreme Court

3 S.D. 49

51 N.W. 948

,(1892)

CARPENTER, Plaintiff and respondent, v. JAMES L. INGALLS,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Frank R. Aikens, Judge

Affirmed

Wynn & Nock

Attorneys for appellant.

McMartin & Carland, Sioux Falls, SD

Attorneys for respondent.

Opinion filed April 5, 1892

KELLAM, P. J.

This was an equitable action to foreclose a mortgage, and was, against James L. Ingalls as sole defendant. The complaint alleges that William H. and Abbie C. Ingalls made a note to plaintiff’s assignor, and to secure its payment made and delivered to him a mortgage upon real estate thereinafter described, and continues with the further usual allegations of a complaint in the foreclosure of a mortgage. Among other things, it is alleged that the defendant has, or claims to have, some interest in or lien upon the mortgaged premises, and that the same, if any exist, accrued subsequently to the lien of the mortgage. The defendant (appellant) demurred to the complaint upon the ground that there was a defect of parties defendant, in that William H. and Abbie C. Ingalls, who executed the note and mortgage, were not made parties defendant. The demurrer was overruled, and the defendant appeals. The argument of the demurrant is that the holder of the equity of redemption was a necessary party defendant; that the complaint, by fair construction, shows that the mortgagors were still such holders, for it nowhere suggests any change in the ownership of the mortgaged property or in the mortgagor’s relation to it; and that the defendant is only mentioned as a party claiming some interest in or lien upon the mortgaged premises. The object of the equitable action of foreclosure is, of course, to cut off the right to redeem the property mortgaged from the claim of the mortgage. By the statute there may be united with this equitable proceeding a claim for a personal judgment for any deficiency that may remain after the proceeds of a sale have been applied towards the payment of the mortgage debt, against whomsoever may be legally liable to pay such deficiency. Until foreclosure, there is an equitable right to redeem in the mortgagor, or in the person to whom he may have transferred such right. Such transfer is usually made by a conveyance of the legal title. The primary object of the action being to extinguish this right to redeem, the party who holds such right is always a necessary party defendant, for it is against his interest that, the relief is sought, and he would ordinarily be the only strictly necessary defendant. Upon this proposition there is no disagreement. The ground of demurrer is the defect of parties defendant. To be demurrable, the complaint must itself show this defect. It must show that James L. Ingalls is not the holder of the equity of redemption, and consequently not the only necessary party defendant. Suppose, in this case, the fact to have been that, prior to the commencement of this action, the mortgagors...