Hickey v. Richards

• Decision Date: 20 September 1884
• Citation: 20 N.W. 428,3 Dak. 345
• Parties: Hickey v. Richards.
• Court: South Dakota Supreme Court

20 N.W. 428

3 Dak. 345

Hickey

v.Richards.

Supreme Court of the Territory of Dakota.

Filed September 20, 1884.

On appeal from the district court for the county of Minnehaha.C. H. Wynn, for appellant. Winsor & Sweezey, for respondent.

PALMER, J.

This action was brought in the district court for Minnehaha county by the respondent, Hickey, against the appellant, Richards, to restrain the sale of a tract of land situate in Minnehaha county, and to obtain the release of a mortgage on the same land. The case below was tried by the court, judgment was rendered for the plaintiff, and the cause comes to this court by appeal. It appears from the record that on or about the twenty-ninth day of March, 1879, one Fred A. Taylor executed to H. L. Hollister (one of the firm of J. B. Young & Co.) a note securing the same by mortgage upon the N. W. 1/4 of section 27, in township 101, of range 47, in Minnehaha county, Dakota. Taylor being then the owner of said land, said note became due and payable the fifteenth day of November, 1879. This is the mortgage in controversy here.

It also appears that on or about the eighth day of April, 1882, and while the note and mortgage in question were still in the possession of said Hollister, the respondent, Hickey, acquired title to and became the owner of the land in question. It further appears that on or about the twenty-eighth day of April, 1882, and after said Hickey had purchased the land, the appellant, Richards, by his attorney, C. H. Wynn, represented to said Hollister that Richards had become the owner of or interested in said land upon which the mortgage in question had been given, and requested him (Hollister) to deliver up or assign to him said mortgage and note, and thereupon said Hollister indorsed said note without recourse and delivered it, as well as the mortgage, to said Wynn, as attorney for Richards, Wynn paying Hollister the amount of the note with the interest. No written assignment of said mortgage was ever executed by the mortgagee, Hollister, to Richards. The note was past due when it was received by Richards.

The record in this case does not furnish us a copy of the mortgage, but it is treated by counsel upon both sides as being an ordinary mortgage of real estate with the usual powers of sale, and as such we have considered it. Richards seeks to foreclose said mortgage by advertisement, under the provisions of the law of this territory, and the bringing of this action is the result....