First National Bank v. Bowe, 7965

• Decision Date: 28 April 1937
• Docket Number: 7965
• Citation: 273 N.W. 4,65 S.D. 255
• Parties: FIRST NATIONAL BANK OF CHICAGO, Respondent, v. ELBERT I. BOWE, and Cochran R. Huntley, Sheriff of Beadle County, Appellants.
• Court: South Dakota Supreme Court

65 S.D. 255

273 N.W. 4

FIRST NATIONAL BANK OF CHICAGO, Respondent,

v.

ELBERT I. BOWE, and Cochran R. Huntley, Sheriff of Beadle County, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. Van Buren Perry, Judge # 7965—Reversed Charles P. Warren, Huron, SD Attorney for Appellants. Max Royhl, Huron, SD Attorney for Respondent. Opinion filed Apr 28, 1937

POLLEY, J.

The controversy in this case grows out of the same transactions that were involved in the case of Bowe v. Longstaff et al., 227 N.W. 889, and reference should be had to that case for an understanding of the facts in this case.

The remittitur in that case went down on the 16th day of January, 1930, but for some reason not material here, final judgment was not entered in the trial court until the 29th day of January, 1932. The judgment as entered amounted to $28,662.93. Special execution issued on the judgment so entered, and on the 11th day of March, 1932, the mortgaged property was sold by the defendant Huntley as sheriff of Beadle county. The property was bid in by Bowe, but because of a mistake in the computation of the amount of interest due, the bid for the property exceeded the amount of the judgment by $238.32. The record does not show that this amount was paid to the sheriff by the bidder, nor that the sheriff ever accounted for it in any way; and it was for the recovery of this amount of money that the sheriff was made a party to this action.

No redemption was made from the sale of the mortgaged property and. on the 11th day of March, 1933, sheriff’s deed was executed and delivered to Bowe. This deed to Bowe extinguished plaintiff’s right of possession and its equity of redemption as well. but on the 8th day of March. 1933. three days prior to the expiration of the period of redemption, plaintiff commenced this action. Plaintiff’s prayer for relief reads as follows: “... plaintiff demands judgment against the defendants Elbert I. Bowe and Con. R. Huntley, Sheriff of Beadle County. South Dakota. in the sum of Two Hundred and Thirty-Eight and 32/100 ($238.32) Dollars, with interest from March M. 1932 at seven (7%) per cent. per annum; and for judgment in addition thereto against the defendant Elbert I. Bowe for the amount found due the plaintiff from the defendant Elbert I. Bowe on an accounting for the rents and profits of the premises involved in this litigation for the period and term from and after March 10, 1930, and that said defendant Elbert I. Bowe be adjudged and decreed to pay to the plaintiff what, if anything, upon the taking of said accounting appears to be due to the plaintiff. ... and for such other and further relief as may be just and equitable in the premises, including the costs and disbursements of this action.”

The time for which an accounting was asked was the period from and after the 10th day of March, 1933, to the expiration of the period of redemption. The decree of foreclosure in the case of Bowe v. Longstaff et al., supra, contains the following direction: “That the defendants and each and every one of them, and all persons whomsoever claiming under, by or through them, or either or any of them, from and after the 19th day of October, 1917. the date of filing said mortgage for record in the office of the Register of Deeds of said Beadle county, South Dakota, be forever barred and foreclosed of all right, title, interest, claim, equity and equity of redemption in and to said premises so sold, and of any and every part thereof, subject, however, to such redemption thereof from said sale as is provided by law.”

Findings of fact and conclusions of law in this case were for the plaintiff. The court found that plaintiff was entitled to recover the said sum of $238.32 from the defendant Huntley, and the sum of $6,476.46 against the defendant Bowe, and judgment was entered against them for these respective amounts. From this judgment, defendants appeal.

Whether the defendant is liable to the plaintiff for the rents and profits of the mortgaged premises while he was in possession thereof, prior to the issuance of the sheriff’s deed, depends upon the nature of his possession. If he was holding possession solely by virtue of his mortgage, then he was strictly speaking a “mortgagee in possession” and would be obliged to allow the mortgagor, when he paid the mortgage or redeemed therefrom, a credit for the amount of such rents or profits. But defendant was not in possession as a “mortgagee in possession.” It will be remembered that on the 2d day of May, 1922, the Longstaffs executed and delivered to Riegel (Bowe’s predecessor in interest) a warranty deed to the property described in the mortgages, and as a part of the same transaction said parties...