Dederick v. Ormsby Land & Mortgage Co.

• Decision Date: 02 September 1899
• Parties: DEDERICK v. ORMSBY LAND & MORTGAGE CO. et al.
• Court: South Dakota Supreme Court

80 N.W. 153

12 S.D. 59

DEDERICK v. ORMSBY LAND & MORTGAGE CO. et al.

Supreme Court of South Dakota

September 2, 1899

Appeal from circuit court, Brown county; A. W. Campbell, Judge.

Action by P. K. Dederick against the Ormsby Land & Mortgage Company and another. From a judgment for plaintiff, the corporation defendant appeals. Affirmed.

H. H Potter and E. A. Morling, for appellant. Charles M. Stevens for respondent.

FULLER J.

Whether appellant is liable for the deficiency remaining after the foreclosure of a mortgage on real property is the sole question presented on this appeal from a judgment of that character and from an order denying a motion for a new trial. On the 7th day of June, 1886, through the agency of the American Investment Company, a corporation, respondent loaned to Will B. Stearns $735, due December 1, 1891, with interest at 7 per cent. per annum, payable semiannually, as evidenced by a principal note and six interest coupon interest notes each for $25.72, all of which were secured by a mortgage on land; and payment thereof was at the time, for a valuable consideration, guarantied by the American Investment Company at maturity or within two years thereafter. When the mortgage had matured, and the guaranty above mentioned became operative, and at a time when the Ormsby Land & Mortgage Company held the legal title to the mortgaged premises, a contract extending the time of payment for five years from December 1, 1891, was entered into, expressly continuing in force all the conditions, covenants, and agreements contained in the mortgage, and by which payment of all money due, or to become due, thereon, including the principal note, was assumed, as follows: "In consideration of said extension, the said George J. Consigny, Jr., Sec., hereby agrees to pay interest on said note from December 1st, 1891, until said principal shall be fully paid, at the rate of seven per cent. per annum, payable semiannually, to wit, on the first day of June and December in each year; said interest evidenced by ten interest coupons of even date herewith, made by George J. Consigny, Jr., Sec., and payable to the order of P. K. Dederick. It is hereby covenanted and agreed that all the conditions, covenants, and agreements contained in said trust deed shall continue in full force and apply to the security of said note and the interest to accrue thereon during the full term of the extension hereby given, in the same manner and to the full extent as to the said note, and interest accruing thereon, during the original time for which said note was originally given. *** In witness whereof we have hereunto set our hands and seals this first day of December, 1891. [ Signed] Ormsby Land and Mortgage Company. George J. Consigny, Jr., Sec." This instrument was duly acknowledged by "George J....