Cosgrove v. Fanebust

• Decision Date: 05 October 1897
• Citation: 10 S.D. 213,72 N.W. 469
• Parties: COSGROVE, Plaintiff and respondent, v. FANEBUST et al. Defendants and appellants.
• Court: South Dakota Supreme Court

10 S.D. 213

72 N.W. 469

COSGROVE, Plaintiff and respondent,

v.

FANEBUST et al. Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Jos. W. Jones, Judge Affirmed Joe Kirby, J. G. Eddy Attorneys for appellants. Melvin Grigsby, Davis, Lyon & Gates Attorneys for respondent. Opinion filed Oct. 5, 1897

FULLER, J.

This action to foreclose a mortgage on real property, and obtain a deficiency judgment, resulted in a decree as prayed for and the defendants appeal therefrom, and from an order overruling a motion for a new trial.

After proving the signatures of the makers, by a witness who saw the defendants place them on the notes to secure which the mortgage was executed, the same were introduced in evidence, over the following objection. “Defendants’ counsel object, as incompetent; no foundation laid.” These notes are of even date, and, being upon printed forms or blanks, are but partially in writing. On each note, immediately following and directly under the last printed line, is written, “This note shall draw 10 per cent per annum after maturity;” and the same appears to be written by the person who drew all the notes. none of which bear upon their faces any evidence of an alteration, either before or after appellants placed their signatures thereon. Proof of execution was certainly a sufficient foundation for their admission in evidence, and the burden of proof was upon appellants to show that the instruments have been altered as claimed. Moddie v. Breiland,(1897); Foley-Wadsworth Imp. Co. v. Solomon,(1897); Landauer v. Sioux Falls Implement Co.,(1897).

Upon the face of the mortgage, the written part of which was, together with the notes, prepared by the witness Youngblood, a pen was drawn across the printed word “Paid,” and above the line in which it appears was written. “Due and ten per cent after maturity.” Concerning the erasure of the word “Paid,” and the interlineation above indicated, the mortgagee named in the instrument testified, in substance, that after Mr. Youngblood had prepared the papers, but before they were presented for the signatures of appellants, he drew his pen across the word “Paid,” and wrote the expression, “Due and ten per cent after maturity,” for the purpose of conforming the description of the notes contained in the mortgage to the recitals of those instruments as written by Mr. Youngblood, who was not in any manner acting for him in the...