Home Inv. Co. v. Clarson

• Decision Date: 30 October 1906
• Citation: 21 S.D. 72,109 N.W. 507
• Parties: HOME INVESTMENT COMPANY, Plaintiff and respondent, v. GEORGE C. CLARSON Defendant, and McCormick Harvesting Machine Company, Defendant and appellant.
• Court: South Dakota Supreme Court

21 S.D. 72

109 N.W. 507

HOME INVESTMENT COMPANY, Plaintiff and respondent,

v.

GEORGE C. CLARSON Defendant, and McCormick Harvesting Machine Company, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Sanborn County, SD Hon. Frank B. Smith, Judge Affirmed Bates & Parliman Attorneys for appellant. N. B. Reed Attorneys for respondent. Opinion filed October 30, 1906 (See 15 SD 513, 92 NW 153)

HANEY, J.

The facts constituting the plaintiff’s alleged cause of action are set forth in the former decision of this court on appeal from an order overruling a demurrer to the complaint. Home Inv. Co. v. Clarson, 92 NW 153. They may be summarized thus: Defendant Clarson executed three real estate mortgages upon the same premises, each of which was recorded in the order of its execution. The second having been foreclosed by action, the premises were purchased by the plaintiff in this action, who in due time obtained a sheriff’s deed, and, supposing the rights of the defendant machine company, the third mortgagee, had been foreclosed, it paid the amount of the first mortgage and caused the same to be released of record. In the meantime the machine company foreclosed its mortgage by advertisement and obtained a sheriff’s certificate of sale. Upon the facts then presented it was held that the plaintiff was entitled to have the first and second mortgages restored of record and to be subrogated to the rights of the first and second mortgagees. The learned circuit court, having found the facts to be substantially as alleged in the complaint, rendered judgment for the plaintiff, denied the machine company’s motion for a new trial, and this appeal was taken.

It is contended that the evidence is insufficient to sustain the finding to the effect that the plaintiff caused the release of the first mortgage through a mistake of fact regarding service of summons upon the machine company in the action foreclosing the second mortgage. Edwin S. Rowley, the second mortgagee, testified:

“I turned them [the second mortgage and note secured thereby] over to R. A. Moses, of Woonsocket, S. D., my attorney, and directed him to commence proceedings to foreclose the mortgage and have the land sold to satisfy the amount due. … I gave directions that the land be bid in the name of the Home Investment Company, of which company I was president. I supposed the foreclosure proceedings all regular and that the McCormick Harvesting Machine Company had been foreclosed of all its interests. … would not have bid in the land at the foreclosure sale, and would not have procured the release from Anna Phelps [holder of first mortgage] and would not have filed the release of record had I not supposed and believed that the foreclosure proceedings under my own mortgage were regular, and the interests of the McCormick Harvesting Machine Company were fully foreclosed.”

The machine company was named as a party defendant, but the decree of foreclosure contained this recital: “And that said defendant, the McCormick Harvesting Machine Company was not served with summons in this action.” Mistake may not only be expressly established but it may be inferred from...