Home Inv. Co. v. Clarson

• Decision Date: 01 April 1902
• Citation: 15 S.D. 513,90 N.W. 153
• Parties: HOME INVESTMENT COMPANY, Plaintiff and respondent, v. GEORGE CLARSON, Defendant, and McCormick Harvesting Machine Company Defendant and appellant.
• Court: South Dakota Supreme Court

15 S.D. 513

90 N.W. 153

HOME INVESTMENT COMPANY, Plaintiff and respondent, v. GEORGE CLARSON,

Defendant,

and McCormick Harvesting Machine Company

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Sanborn county.

Hon. Frank B. Smith, Judge.

Affirmed

R. W. Parliman

Attorneys for appellant.

N. B. Reed

Attorneys for respondent.

Opinion filed April 1, 1902

CORSON, J.

This is an appeal from an order overruling the demurrer to the complaint, and the only question to be determined is, does the complaint state facts sufficient to entitle plaintiff to the relief demanded? which is, in effect, that it be subrogated to the rights of the mortgagees in two certain mortgages. It is alleged in the complaint, in substance, that on or about the 1st day of August, 1886, the defendant, George C. Clarson made and executed to the American Bank and Trust Company one promissory note for the sum of $500, payable on July 1, 1891, and to secure the payment of the same he executed a mortgage to the said trust company on 120 acres of land situated in Sanborn county, which mortgage contained the usual conditions, and was duly acknowledged and recorded; that the defendant Clarson on or about the 24th day of August, 1886, executed and delivered to one Rowley his certain other promissory note for the sum of $100, payable in installments of $10 each, and to secure the payment of said note and interest the said Clarson executed a second mortgage upon the property containing the usual conditions, and which was acknowledged and recorded; that in June, 1889, the said Clarson executed and delivered to the defendant McCormick Harvesting Machine Company his note for the sum of $175, and to secure the same executed a third mortgage upon the said premises, containing the usual conditions, and which was duly acknowledged and recorded. The plaintiff further alleges that, the said Clarson having failed to pay the interest or principal upon the second mortgage executed to said Rowley, said Rowley proceeded to foreclose the same by action, and the said American Bank and Trust Company, first mortgagee, and the said McCormick Harvesting Machine Company, the third mortgagee, were made defendants in that action; that such proceedings were had in said action that a judgment of foreclosure was rendered thereon the 8th day of May, 1891, directing a sale by foreclosure of the said premises to satisfy the said note and mortgage then owned by the said Rowley, and in pursuance of said decree the property was advertised for sale, and was sold by the sheriff of Sanborn county, and that the same, was bid in by this plaintiff for the sum of $132.11, which said sum was duly paid to the said sheriff, who executed to this plaintiff a certificate of sale to the same, and that subsequently, on July 13, 1892, the plaintiff received from the said sheriff a deed of said property in the usual form; that when the plaintiff made, the said purchase at said sheriff’s sale it supposed that the said McCormick Harvesting Machine Company had been duly served with summons in said foreclosure action, and that the proceedings foreclosing said second mortgage were all regular and legal, and thereupon to protect its interest in said land, on August 3, 1891, it procured from one Anna Phelps, the legal holder of the first mortgage, hereinbefore mentioned, and which mortgage was a prior and superior lien, a duly executed release of said mortgage and the note secured by said superior lien, which was past due; that the plaintiff paid the said Anna Phelps for said release the sum of $570, which was the amount of...