Kammann v. Barton

• Decision Date: 26 June 1909
• Citation: 23 S.D. 442,122 N.W. 416
• Parties: FREDERICK W. KAMMANN, Plaintiff and respondent, v. LOT LEE BARTON, and H. F. Hunter, Defendants and appellants.
• Court: South Dakota Supreme Court

23 S.D. 442, 122 N.W. 416 (1909)

FREDERICK W. KAMMANN, Plaintiff and respondent v LOT LEE BARTON, and H. F. Hunter

Defendants and appellants

South Dakota Supreme Court

Appeal from Circuit Court, Spink County, SD

Hon. Charles S. Whiting, Judge

Reversed

W. F. Corrigan, Taubman, Williamson & Herreid

Attorneys for appellants.

D. W. Poindexter

Attorneys for respondent.

Opinion filed June 26, 1909.

McCOY, J.

This is an action commenced by plaintiff, F. W. Kammann, against the defendants, Lot Lee Barton and H. F. Hunter, to foreclose a real estate mortgage. The complaint is as follows:

“Plaintiff alleges: That on June 13, 1889, defendant Lot Lee Barton was indebted to plaintiff in the sum of $237, evidenced by two promissory notes dated March 6, 1889, one for $228, one for $9, both due September 6, 1889, bearing interest at 12 per cent. per annum after maturity, and on June 13, 1889, defendant Barton, to secure said notes, made his mortgage deed, whereby he sold and conveyed to plaintiff the S.W. ¼ of sec. 32-120-63, to be void upon the payment of said notes. That said mortgage contained a power of sale in the usual form, and was recorded. That the plaintiff is still the owner of said mortgage, and the same is due and unpaid. That plaintiff commenced foreclosure by advertisement, but has been compelled to foreclose by action. That in August, 1905, defendant Hunter commenced an action in this court against this plaintiff to quiet title in himself in said premises. That this plaintiff, answering, alleged the making of said mortgage, etc. That said action was tried to the court on January 10, 1906. Said court found, adjudged, and decreed that defendant in that action (the plaintiff in this action) had a valid lien on said land by virtue of said mortgage to the amount of $701.88 as more fully appears by the record and papers in said action. Wherefore plaintiff prays judgment against said defendant (1) for $701.88, and interest on said sum from January 10, 1906, and $7 damages sustained by reason of suing out the restraining order; (2) the usual decree for the sale of said premises,” etc.

The defendants made joint answer by general denial, except as to all matters specifically admitted, and alleged that said notes and mortgage described in the complaint were never delivered to plaintiff; that said notes and mortgage were executed by the defendant Barton and delivered to the Bank of Ashton in escrow, to be delivered to plaintiff when plaintiff delivered to Barton the sums of money represented by said notes; and that the said sums of money represented by said notes, nor any part thereof, were ever delivered to Barton, or to any other person for him, and that said notes and mortgage were wholly without consideration; and defendants also pleaded the statute of limitations, both the six and ten year statutes.

The only evidence offered by plaintiff in this case in proof of the allegations of the complaint was the mortgage and the judgment roll, consisting of summons, complaint, answer, reply, findings, and judgment in the former action of H. F. Hunter, plaintiff, v. F. W. Kammann defendant. From this judgment roll it appears that plaintiff Hunter brought suit against the defendant, Kammann, to quiet title to S.W. ¼, 32-120-63, plaintiff alleging ownership and possession in himself, and that defendant, Kammann, claimed to have some interest in or incumbrance upon said real estate adverse to plaintiff. In that action defendant answered, alleging that on June 13, 1889, one Lot Lee Barton was the owner of said premises and being indebted to defendant in the sum of $237 and interest due September 6, 1889, to secure the payment thereof, executed and delivered to defendant a real estate mortgage upon said premises containing a power of sale, and to this answer the plaintiff in that action replied by a general denial and also by setting up the statute of limitations against the notes and mortgage, and also alleged that said notes were give without consideration, and that said notes were not executed and delivered to defendant, Kammann. On the trial of the former action the court found:

“That the plaintiff Hunter was the owner of said land, subject, however, to a mortgage lien thereon in favor of defendant, Kammann; that Hunter acquired title by warranty deed from Barton August 13, 1898, and that Barton acquiried title from the United States; that on June 13, 1889, Barton executed a mortgage to defendant Kammann, to secure $237, evidenced by two notes described in the answer, and that said mortgage was on June 14, 1889, duly filed for record and thereafter duly recorded; that defendant is still the owner and holder of said notes and mortgage, and that no part of said debt has ever been paid, and that defendant has a valid and subsisting lien on said lands superior and paramount to the title of plaintiff to the amount of $701.88,”

and thereafter the court rendered judgment

“that plaintiff Hunter take nothing by said action; that the mortgage of defendant is superior and paramount to the title of plaintiff in and to said land in the sum of $701.88; and that on the payment of said amount to defendant title to said land be quieted in him.”

In the case at bar the court found

“that on June 13, 1889, the defendant Lot Lee Barton executed and delivered to plaintiff his mortgage on the S.W. ¼ of section 32 to secure the payment of $237, with interest, due September 6, 1889; that said mortgage contained a power of sale; that said mortgage was duly filed for record; that in August, 1905, defendant Hunter, as plaintiff therein, commenced an action in this court against this plaintiff as defendant therein to quiet title in Hunter to said land as the immediate grantee of defendant Barton under a warranty deed of August, 1898; that this plaintiff as defendant in that action answered and pleaded the making and delivery of said notes and mortgage; and that the title of Hunter was subject to the said mortgage of the said defendant, and to which answer the said Hunter replied, denying the allegations of said answer, and alleging the statute of limitations against said notes and mortgage, and alleging that said notes and mortgage were never delivered to the defendant, Kammann;”

that on the 10th day of January, 1906, the said action of Hunter v. Kammann was tried and the court heard the proofs and considered the same, and, the records and papers in the case and arguments of counsel and said cause having been submitted, the court found

“that plaintiff Hunter was the owner of the land subject to the said mortgage of defendant; that Hunter derived title from Barton in 1898, and that prior thereto, in 1889, Barton was indebted to defendant in the sum of $237, and made said mortgage to...