Hodgdon v. Davis

• Decision Date: 28 February 1888
• Citation: 50 N.W. 478,6 Dak. 21
• Parties: Hodgdon et al. v. Davis.
• Court: South Dakota Supreme Court

50 N.W. 478

6 Dak. 21

Hodgdon et al.

v.Davis.

Supreme Court of the Territory of Dakota.

Feb. Term, 1888.

Appeal from district court, Minnehaha county; C. S. Palmer, Judge.

Action by Alfred M. Hodgdon and Emily J. Hodgdon against Leonard F. Davis to set aside a mortgage foreclosure. A demurrer to the complaint was sustained, and plaintiffs appeal. Affirmed.

The complaint alleged that plaintiffs, on July 25, 1883, gave a mortgage on certain land, owned by them, to a mortgage company, to secure $2,530, payable December 1, 1888, with interest at 6 1/2 per cent. per annum, payable annually on the 1st of December. That on the 14th day of July, 1884, the plaintiffs, desiring a further loan of money, applied to the defendant for the sum of $3,000, and offered to secure the same upon the same premises above described, and thereupon the defendant loaned to the plaintiffs the sum of $2,970, and paid to them then and there the sum of $2,867.70, and no more, and took from them as security for the loan their note and mortgage of that date for the principal sum of $5,500, due on the 14th day of July, 1889; the note bearing 12 per cent. interest per annum, upon the full amount of $5,500; the mortgage covering the same premises as the first mortgage. That at the same time, and as part of the same transaction, defendant gave plaintiffs his bond, conditioned that defendant should pay to the mortgage company all such money as then was or might thereafter become due on the note and mortgage for $2,530. That defendant had never paid the mortgage of $2,530, or any part thereof, except that before foreclosing the mortgage given to him by plaintiffs, he, on December 1, 1884, paid the sum of $164.45, being the interest then due, and on December 1, 1885, paid $164.45, being the interest due on that date. That of the $164.45 paid December 1, 1884, $102.30 was interest which accrued on the $2,530 between December 1, 1883, and July 14, 1884. That July 30, 1885, defendant commenced foreclosure of the mortgage to him by advertisement, and in the published notice of foreclosure sale assigned as reasons for the foreclosure that default had been made in the payment of interest; and that, whereas, it was provided in the mortgage that “in case of the breach of any agreement therein contained the whole principal and interest thereby secured shall, at the option of the holder thereof, immediately become due and payable,” he had, by virtue of the option and the power of...