Iowa Inv. Co. v. Shepard

• Decision Date: 07 March 1896
• Citation: 8 S.D. 332,66 N.W. 451
• Parties: IOWA INVESTMENT COMPANY, Plaintiff and respondent, v. SHEPARD et al. Defendant and appellant.
• Court: South Dakota Supreme Court

8 S.D. 332

66 N.W. 451

IOWA INVESTMENT COMPANY, Plaintiff and respondent, v. SHEPARD et al.

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Kingsbury County, SD

Hon. J. O. Andrews, Judge

Affirmed

R. W. Hobart

Attorneys for appellant.

S. E. Hostetter, Aikens, Bailey & Voorhees, Sioux Falls, SD

Attorneys for respondent.

Opinion filed March 7, 1896

FULLER, J.

Basing its right upon a claim of ownership, plaintiff brought this action to quiet title to certain real estate described in the complaint, and this appeal is from an order sustaining a demurrer to the answer of John Shepard, who was the only party defendant appearing therein. The undisputed facts disclosed by the pleadings are confessedly sufficient to entitle respondent to all the relief prayed for, provided the following notice or advertisement of mortgage foreclosure sale udder a power of sale is found to be in substantial compliance with the statute:

“Mortgage Sale. Default having been made in the payment of the installment due June 1st, 1891, and the last installment, due January 1st, 1892, on a certain note secured by mortgage dated January 27th, 1887, given by Louis C. Tucker and wife, Betsie E. Tucker, to F. W. Little, and duly recorded in the office of the register of deeds of Kingsbury county, then territory of Dakota, now state of South Dakota, on the 12th day of February, 1887, at ten o'clock a. m., in Book 14 of Mortgages, on page 207. The amount claimed to be due thereon at the date hereof is $12.90, and the further sum of $50.00 attorney’s fees, as provided in said mortgage; making in all $62.90 now due. No action or proceeding at law or otherwise has been instituted to recover the debt secured by this mortgage, or any part thereof. Now, therefore, notice is hereby given that under and by virtue of the power of sale contained in said mortgage, and the statute in such case made and provided, the mortgage will be foreclosed by sale at public auction, by the sheriff of said Kingsbury county, or his deputy, on the 9th day of April, 1892, at ten o'clock in the forenoon of that day, at the front door of the court house in the city of De Smet, in said county and state, and substantially described in said mortgage as follows, to wit:

The southeast quarter of section eleven (11), in township one hundred and ten (110) north, range fifty-eight (58) west of the 5th P. M., being 159 acres, more or less.

Dated at De Smet, So. Dak., February 20th, 1892.

F. W. Little, Mortgagee.

A. P. Shenian, Attorney for Mortgagee.”

The following provision of the Compiled Laws is the statu- tory rule by which the foregoing notice must be measured:

“Every notice must specify:

(1) The names of the mortgagor and mortgagee, and the assignee, if any.

(2) The date of the mortgage.

(3) The amount claimed to be due thereon at the date of the notice.

(4) A description of the mortgaged premises, conforming substantially with that contained in the mortgage; and

(5) The time and place of sale.”

Comp. Laws, § 415. The contention of appellant is that the notice nowhere states that the mortgage will be foreclosed, that it is not stated that the property described in the notice is the property covered by the mortgage, that the mortgagor and mortgagee are not named therein, and that “a description of the mortgaged premises conforming substantially with that contained in the mortgage” is not given. Evidently the object of the notice contemplated by statute is to fully...