Houts v. Hoyne
| Decision Date | 31 December 1900 |
| Citation | 84 N.W. 773,14 S.D. 176 |
| Parties | HOUTS v. HOYNE. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Turner county; E. G. Smith, Judge.
Action by W. A. Houts against Nels M. Hoyne. From a judgment for defendant, plaintiff appeals. Affirmed.
W. E Gantt, for appellant. French & Orvis, for respondent.
This is an action for an accounting to ascertain the amount due on a certain mortgage upon real property in Turner county, of which property plaintiff claims to be the owner, and of which defendant was in possession, claiming title under a mortgage foreclosure sale. Plaintiff also asks leave to redeem, and upon payment of the amount found due to be restored to the possession of the said property. Plaintiff's action was instituted and is prosecuted upon the theory that the foreclosure proceedings were not legal, and the sale thereunder void. Defendant among other things, pleads the statute of limitations, and if this is valid, it will be unnecessary to examine the other defenses, as this will dispose of the case. The mortgage in question was executed by one James D. Hornbeck, bearing date September 5, 1879, to one Ira Davenport. Davenport, on the 22d day of July, 1882, commenced proceedings by advertisement to foreclose said mortgage, purchased said property at the sale, and on December 20, 1883, the sheriff executed and delivered to him a sheriff's deed to said premises. The plaintiff claims title under said Hornbeck, the original owner and mortgagor of the premises. The defendant was in possession of the premises at the time of the commencement of this action, July 22, 1897, claiming title under said Davenport, mortgagee, and purchaser at said foreclosure sale. The plaintiff, in the fourth paragraph of his complaint alleges that on or about the 1st day of September, 1882, the said Davenport unlawfully entered into possession of said premises, and remained in possession thereof until on or about the 4th day of April, 1892, when he assigned all his right, title, and interest in and to said premises to the defendant, Nels M. Hoyne, who, on or about said date, took possession of the same, and ever since has remained in possession of said premises. The court, in its ninth finding of fact, finds that said Davenport, claiming to act under and by virtue of said foreclosure proceedings, and under the deed executed therein, on or about the 20th day of September, 1883, went into possession of said premises, claiming to be the owner and holder of the same by virtue of said foreclosure proceedings and under the deed aforesaid, and remained in possession thereof until the 4th day of April, 1892, on which date said Davenport duly conveyed said premises by deed, and delivered the possession thereof to the defendant, Hoyne, who ever since said date has been, and is now, in possession thereof, claiming the same by virtue of the foreclosure proceedings aforesaid. It will thus be observed that more than 10 years elapsed after the mortgage became due and the foreclosure of the same before the commencement of this action, and also more than 10 years elapsed between the time Davenport entered into possession and the commencement of this action. It is contended on the part of the appellant that under the statute of limitations contained in the Code of Civil Procedure of this state the action was not barred until 20 years had elapsed, but he has failed to call our attention to any section of the statute providing for a 20-years bar which, by a fair construction, would include this case. He insists that the action is, in effect, to recover possession of the property, and therefore comes within the provisions of chapter 6, art. 2, being sections 4834-4847 of the Compiled Laws; and he also insists that the distinctions between law and equity no longer exist in this state. But, in our opinion, the provisions of that article apply to actions at law only where the principal object of the action is to recover possession of the property, and not to equitable actions; and we are of the opinion that, though the forms of actions are abolished, the distinction between law and equity still exists. The title of article 2 is, "Time of Commencing Actions for the Recovery of Real Property," but actions in equity brought for the purpose of an accounting and for leave to redeem the property are not referred to or included in any of its provisions. In article 3, entitled "Time of Commencing Actions Other than for the Recovery of Real Property," being sections 4848-4857 of the Compiled Laws, is the following provision: "An action for relief not hereinbefore provided for must be...
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