Loomis v. Stoddard

• Citation: 42 S.D. 272,173 N.W. 859
• Decision Date: 15 August 1919
• Docket Number: No. 4485.,4485.
• Parties: LOOMIS v. STODDARD et al.
• Court: South Dakota Supreme Court

42 S.D. 272
173 N.W. 859

LOOMIS
v.
STODDARD et al.

No. 4485.^*

Supreme Court of South Dakota.

Aug. 15, 1919.

Appeal from Circuit Court, Faulk County; J. H. Bottum, Judge.

Action by P. W. Loomis against Julius C. Stoddard and others. From a judgment for plaintiff and an order denying a new trial, the named defendant appeals. Affirmed.

Whiting, J., dissenting.

[173 N.W. 860]

W. J. Jacobs, of Faulkton, for appellant.

F. E. Snider, of Faulkton, for respondent.

SMITH, P. J.

Plaintiff, Loomis, who is respondent here, brought an action to quiet title against Julius C. Stoddard, defendant and appellant, also making other parties defendants who are not interested in this appeal. All except Julius C. Stoddard made default. Stoddard answered by counterclaim, alleging title in himself and demanding that his title be quieted. The trial court entered findings of fact and conclusions of law favorable to plaintiff. Defendant appeals, assigning as error insufficiency of the findings to sustain the conclusions of law and judgment.

So far as material here, the findings recite that on the 5th of May, 1913, Julius C. Stoddard and Annie Stoddard, his wife, mortgaged the premises in controversy to J. D. Newcomer Company to secure a loan of $600, and on the same date executed a commission mortgage to said company on the same premises for $60. The mortgagors having made default in payment of the last-mentioned mortgage, J. D. Newcomer Company foreclosed under the power contained in the mortgage. Notice of foreclosure sale was duly published, and on March 25, 1916, the mortgaged premises were sold to J. D. Newcomer Company for $98.69, being the full amount due on the mortgage with costs of foreclosure, and a certificate of sale issued. Thereafter J. D. Newcomer Company, apparently having sold the first mortgage, and the mortgagor having defaulted in payment of the taxes due on said land, bid in the property at tax sale, and received a tax sale certificate. On the 21st of February, 1917, J. D. Newcomer Company assigned the certificate of foreclosure sale, and also the tax sale certificate, to Meigs & Johnson, and on March 27, 1917, no redemption from foreclosure sale having been made, a sheriff's deed issued to them. On February 28, 1917, they paid the taxes accruing that year, and on April 3, 1917, surrendered for cancellation the tax sale certificate. On June 12, 1917, Meigs and Johnson, in consideration of $3,680, conveyed the premises to the plaintiff, P. W. Loomis, deducting from the purchase price the amount of the unpaid first mortgage. Thereafter plaintiff, Loomis, paid accruing taxes, and on May 28, 1918, paid the principle and interest due on the first mortgage.

It is conceded that the foreclosure proceedings were regular and in strict compliance with the statute, except an alleged defect in the published notice of sale. The land was described in the recorded mortgage as the “northwest quarter of section nine (9) in township one hundred nineteen (119), range sixty-eight (68), in Faulk county.” In the notice of sale, it was described as “northwest quarter of section nine (9) in township one hundred nine (119), range sixty-eight (68) in Faulk county.” The trial court as conclusions of law held: First, that the notice of sale was not void, but was in substantial compliance with the statute; second, that appellant was estopped from attacking the validity of the sale because of laches.

[1][2] The statute (section 640, subd. 4, Code Civ. Proc.; section 2880, Rev. Code 1919) requires that a notice of foreclosure sale must specify “description of the mortgaged premises, conforming substantially to that contained in the mortgage.” A description conforming substantially with that contained in the mortgage is sufficient. The description must be sufficient to enable the mortgagor or an intending purchaser to identify the property to be sold. The notice in this case described the property as in “township one hundred nine,” the written words, immediately followed by figures, plainly referring to the township as “119.” Standing alone, such description might possibly be deeemd so indefinite as not to conform substantially with the description in the mortgage. But the notice further described the property as situated in, and the mortgage as recorded in, Faulk county. We are of the view that the apparent ambiguity in the description of the township is patently a mere clerical error which, considered in connection with the other facts recited in the notice, could not mislead the mortgagor or an intending purchaser.

[3] May it not be assumed to be a matter of common knowledge that there is no township 119 in that county? Certainly the courts will take judicial notice that township 109 is not in Faulk county...