Houck v. Hult, 7680.

Citation63 S.D. 290,258 N.W. 142
Decision Date17 December 1934
Docket NumberNo. 7680.,7680.
PartiesHOUCK v. HULT et al.
CourtSupreme Court of South Dakota

63 S.D. 290
258 N.W. 142

HULT et al.

No. 7680.

Supreme Court of South Dakota.

December 17, 1934.

Appeal from Circuit Court, Clay County; A. B. Beck, Judge.

Action by J. R. Houck against Walter Wallace Hult and others. From a judgment for defendants and an order denying a new trial, plaintiff appeals.


[258 N.W. 143]

O'Keeffe & Stephens, of Pierre, for appellant.

Alan Bogue, of Parker, for respondents A. N. and Mathilda Anderson.

ROBERTS, Presiding Judge.

Plaintiff appeals from an adverse judgment and order overruling motion for new trial. This is an action to cancel and set aside satisfactions of a mortgage executed by defendant Walter Wallace Hult to the defendants A. N. Anderson and Mathilda Anderson, to reinstate the mortgage as a valid lien, to recover of the defendants A. N. Anderson and Mathilda Anderson such sum as shall by the court be found to be due upon the mortgage, and for a foreclosure thereof. This case has previously been before this court. The opinions are reported in 58 S. D. 181, 235 N. W. 512, and Id., 60 S. D. 570, 245 N. W. 469, where an order of the trial court granting defendants a new trial was affirmed.

Defendant A. N. Anderson purchased a 40-acre tract situate in Clay county from defendant Hult on August 18, 1920, at the agreed consideration of $12,000, and paid to Hult $2,000 in cash. Anderson and his wife on March 1, 1921, executed and delivered to Hult a mortgage on this land securing two notes in the sum of $5,000 each, one note due March 1, 1922, and the other note due March 1, 1923.

On August 30, 1920, defendant Hult contracted with the plaintiff for the purchase of a half section of land in Potter county at the agreed consideration of $21,760, and as a part of the consideration Hult agreed to assign to plaintiff the notes and mortgage which the Andersons agreed to execute and deliver to Hult and paid in cash the sum of $200. Hult failed to assign the notes and mortgage under the terms of the contract, and Houck commenced an action in the circuit court of Potter county for specific performance of the contract. Judgment was recovered decreeing that Hult should assign the notes and mortgage executed by the Andersons, and, if he failed to make the assignment, the clerk of courts of Potter county was appointed as a commissioner to make an assignment on behalf of Hult. Transcripts of the judgment in the circuit court of Potter county were filed in Clay and Union counties and executions were issued thereon to the sheriffs of such counties which were returned unsatisfied. The alleged ground upon which plaintiff sought relief was that the satisfactions of the mortgage were fraudulently executed, and that defendants A. N. Anderson and Hult conspired to defeat plaintiff in the collection of the mortgage debt. Defendants deny that there was fraud or collusion, and allege as an affirmative defense that Anderson paid the mortgage debt to Hult.

The trial court found that on June 9, 1922, Hult went to the place of business...

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