Federal Land Bank v. Fjerestad

• Decision Date: 14 April 1939
• Docket Number: 8184
• Citation: 66 S.D. 429,285 N.W. 298
• Parties: FEDERAL LAND BANK OF OMAHA, Respondent, v. PETER C. FJERESTAD, et al., Appellants.
• Court: South Dakota Supreme Court

66 S.D. 429

285 N.W. 298

FEDERAL LAND BANK OF OMAHA, Respondent,

v.

PETER C. FJERESTAD, et al., Appellants. South Dakota Supreme Court Appeal from Circuit Court, Deuel County, SD Hon. W.W. Knight, Judge #8184—Affirmed Philo Hall, Brookings, SD R.S. Aaby, Toronto, SD Attorneys for Appellants. Walter A. Gronna, Clear Lake, SD Otto A. Gruhn, Clair L. Kintz, Omaha, NE Attorneys for Respondent. Opinion Filed Apr 14, 1939

ROBERTS, Judge.

Defendants appeal from an order overruling demurrer to the complaint.

It is alleged that Andrew P. Fjerestad, the record owner of 240 acres of real estate in Deuel County, South Dakota, and his wife Karine P. Fjerestad, executed and delivered on April 5, 1926, to the Federal Land Bank of Omaha their note for $9,500, and a mortgage upon the real estate as security for the payment of the note; that on or about December 25, 1930, Andrew P. Fjerestad died intestate and left as his heirs at law Karine P. Fjerestad and ten children; that on December 7, 1935, the widow and the other heirs entered into an extension agreement which contains the following provision:

“As part of the consideration for any extension that may be granted, I hereby assume and agree to pay, not only the items extended but the entire balance of the debt owing The Federal Land Bank of Omaha under its mortgage loan. This assumption particularly applies where the applicant is not previously personally liable for the loan.”

It is further alleged that Ralph Fjerestad, a son of the mortgagors, died intestate on May 15, 1931, leaving as his only heirs at law his mother Karine P. Fjerestad, now deceased; that on March 20, 1937, the surviving children of the mortgagors by quitclaim deed conveyed the land to the mother; and that at the time of the commencement of this action no administrator of the estate of any one of these deceased persons had been appointed. Plaintiff seeks a foreclosure of the mortgage and a personal judgment against the surviving heirs who signed the extension agreement, but no deficiency judgment is sought against the estate.

Defendants contend that the executor or administrator of a deceased mortgagor, or of a deceased successor in interest, is a necessary party to an action to foreclose the mortgage and that the heirs or devisees need not be joined.

Title to land of decedents does not vest in their personal representatives, but in their heirs at law or devisees, subject to the control of the county court and possession of these executors or administrators during administration. §§ 700, 3301, Rev. Code 1919; Carter v. Frahm, 141 N.W. 370; In re Guider’s Estate, 260 N.W. 828.

The mortgagor, if he remains the owner of the equity of redemption, is a necessary party defendant to an action to foreclose a mortgage; without his presence the primary object of the action, a decree foreclosing the equitable estate and right of redemption, cannot be obtained. Carpenter v. Ingalls, 44 AmStRep 753. In Wiltsie on Mortgage Foreclosure, 4th ed., § 356, it is said: “The heirs of a mortgagor or person who dies intestate seized of the equity of redemption in mortgaged premises are as necessary parties to a foreclosure as the deceased mortgagor or the owner would have been, if the action had been brought in his life-time, as they succeed by operation of law under the statute of descent to the entire interest of the decedent in the property, the same as a purchaser would succeed to such interest by grant.” See also Thomas v. Barnes, 219 Ala. 652, 123 So. 18; Buff v. Schafer, 157 Minn. 485, 196 N.W. 661; Reinhardt v. Calhoun, 156 A. 12, 9 N.J. Misc. 914; Woods v. First Nat. Bank, 9 Cir., 16 F2d 856; Phillips v. Parker, 148 Kan. 474, 83 P. 2d 709, 119 ALR 801. There is no necessity, however, for making the heirs parties defendant if a mortgagor conveyed his title in the mortgaged premises before his death or if the land...