Medin v. Brookfield

• Decision Date: 10 August 1938
• Docket Number: 8107
• Citation: 281 N.W. 97,66 S.D. 209
• Parties: JOHN T. MEDIN, Respondent, v. HUON T. BROOKFIELD, et al., Appellants.
• Court: South Dakota Supreme Court

66 S.D. 209

281 N.W. 97

JOHN T. MEDIN, Respondent,

v.

HUON T. BROOKFIELD, et al., Appellants. South Dakota Supreme Court Appeal from the Circuit Court, Minnehaha County, SD Hon. Lucius J. Wall, Judge #8107—Affirmed Danforth & Davenport, Sioux Falls, SD Attorneys for Appellants. Odean Haried, Jones, Matthews & Fitzpatrick, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Aug 10, 1938

ROBERTS, Presiding Judge.

Plaintiff, executor of the last will and testament of Charles Rosengren, deceased, commenced this action in the circuit court of Minnehaha County to foreclose a real estate mortgage. Admitting execution and delivery of the note and mortgage, defendants in their answer affirmatively allege that decedent “in consideration of the defendants having paid interest on said note and mortgage for many years made a gift to the defendants herein of any unpaid amount that might be due on said note and mortgage at the time of his death and in execution of said gift executed and delivered a satisfaction in writing, duly acknowledged, to these defendants, and that said satisfaction was duly filed for record.” Findings and conclusions were made and entered in favor of the plaintiff and from the judgment decreeing a foreclosure of the mortgage and from an order overruling a motion for new trial defendants appeal. The principal contention on the part of the defendants is that the evidence is insufficient to support the findings of fact made by the court.

On March 28, 1920, the defendants purchased under a written contract a house and lot in the city of Sioux Palls from Charles Rosengren for which they agreed to pay $3,500. Title was conveyed on March 15, 1924, and defendants executed and delivered their promissory note for $1,300, payable on April 15, 1929, and secured by a mortgage on the premises. When the principal became due and payable, an agreement was made extending the time of payment to April 15, 1934. Defendant, Esther R. Brookfield, in an application filed on November 1, 1934, with the Home Owners Loan Corporation for a loan stated that decedent desiring to adjust his business affairs by reason of advanced years and poor health would not agree to an extension of time of payment. On November 3, 1934, Charles Rosengren executed a consent to accept Home Owners Loan Corporation bonds in payment of the indebtedness. It also appears from the evidence that the decedent was in a hospital for a time during the tall of 1934 and that after leaving the hospital on November 8, 1934, he resided in the home of the defendants until April, 1935. It was during this time that decedent signed and acknowledged before a notary public a satisfaction of the mortgage. A witness for the defendants referring to the satisfaction testified: “I drew that exhibit. I saw Charles Rosengren whose name appears thereon sign it. He did sign it in my presence and I took his acknowledgment. When it was executed, it was explained to him what it was. After he signed it I went to hand it to him after I had taken the acknowledgment and put on my seal. Mr. Brookfield was in the same room and he motioned to me to hand it to Mr. Brookfield, and I gave it to Mr. Brookfield in his presence, by virtue of his suggested motion. That was on the 4th of December. Mr. Brookfield came to see me to get me out to the Brookfield house. I think he furnished me with the information or data upon which to prepare the instrument. I think he had the mortgage with him and I drew the satisfaction, and then went up to his house for the acknowledgment.” It further appears that a few days later the consent of decedent to accept bonds and certain other papers which had been submitted to the Home Owners Loan Corporation were withdrawn by defendants, and no further effort was made to complete the loan. A few hours after the death of Charles Rosengren on July 9, 1935, the satisfaction of the mortgage was filed for record. From this evidence the court found that while the application to the Home Owners Loan Corporation “was still pending and obviously to further assist the defendants in securing the loan which had been applied for Charles Rosengren executed and delivered to the defendants a satisfaction of the note and mortgage ...; that no consideration was paid for said satisfaction and the relations between the defendants, Brookfields, and the said ...