Male v. Harlan

• Court: Supreme Court of South Dakota
• Writing for the Court: CORSON
• Citation: 12 S.D. 627,82 N.W. 179
• Parties: MALE et al. v. HARLAN et al.
• Decision Date: 02 March 1900

12 S.D. 627
82 N.W. 179

MALE et al.
v.
HARLAN et al.

Supreme Court of South Dakota.

March 2, 1900.

Appeal from circuit court, Meade county; A. J. Plowman, Judge.

Action by William H. Male and others against James E. Harlan and others. The plaintiffs appeal from that part of the decree which was adverse to them. Appeal dismissed.

[82 N.W. 179]

Edwin Van Cise, for appellants. Martin & Mason, for respondent.

CORSON, J.

This was an action to foreclose a real-estate mortgage. James E. Harlan was made defendant for the reason that he held a certificate on a tax sale made of the property included in the mortgage, which the plaintiffs claimed was subject and subsequent to the mortgage. Harlan claimed that the tax certificate was a prior and paramount lien upon the property. The judgment or decree was in the usual form, decreeing the sale of the mortgaged property, and that all and each

[82 N.W. 180]

of the defendants be forever barred and foreclosed of all right, title, interest, and equity of redemption in and to the said mortgaged premises so sold, or any part thereof, unless the same should be duly redeemed within one year from the day of sale as provided by law, “excepting, however, a lien in favor of defendant James E. Harlan for the sum of $129.43, with interest thereon at 12 per cent. per annum from November 6, 1893, on account of taxes paid by him on the mortgaged premises, which lien is decreed to be prior and paramount to that of plaintiffs, and that plaintiffs' lien and the sale made under this decree shall be subject to such paramount lien in favor of defendant James E. Harlan, and also to a further lien in his favor for the sum of $17 costs, awarded to him against the plaintiffs in this action.” The plaintiffs proceeded to advertise and sell the property mortgaged under this decree, and subsequently took an appeal to this court from that portion of the judgment excepting the lien in favor of defendant Harlan. Respondent now moves to dismiss this appeal, on the ground that the appellants could not appeal from that portion of the decree entered in the lower court which was adverse to them, and at the same time enforce that portion which was in their favor; the enforcement of the decree by execution being a ratification of its validity and a waiver of their right of appeal. And in support of his motion to dismiss the respondent contends that the appellants have sold the mortgaged premises subject to defendant Harlan's lien, as required by the decree, and that they have therefore presumably made their bid with reference to that lien, and, having obtained the land for a price presumptively less than its value to the amount of the lien, they now seek to have that lien nullified and set aside; and respondent insists that the general rule, that the enforcement of the judgment by execution or otherwise is a ratification of its validity, and is an abandonment or waiver of the right of appeal, applies to this case. The appellants insist, in opposition to the motion, that they have a right to take an appeal from that part of the judgment...