Payton v. Rogers

• Decision Date: 24 May 1939
• Docket Number: 8239.
• Citation: 285 N.W. 873,66 S.D. 486
• Parties: PAYTON et al. v. ROGERS et al.
• Court: South Dakota Supreme Court

285 N.W. 873

66 S.D. 486

PAYTON et al. v. ROGERS et al.

No. 8239.

Supreme Court of South Dakota

May 24, 1939

Appeal from Circuit Court, Pennington County; A. R. Denu, Judge.

Action by C. B. Payton and another against Louise G. Rogers and another for strict foreclosure of a contract for the sale of realty. Judgment was entered by the court on a stipulation and from an order vacating and setting aside the judgment and directing that the action be tried before the court without a jury, plaintiffs appeal.

Affirmed.

Williams & Sweet, of Rapid City, for appellants.

Whiting & Wilson, of Rapid City, for respondents.

ROBERTS Judge.

This action was commenced in August, 1937, seeking a strict foreclosure of a contract for the sale of real property. The action was brought to trial on March 12, 1938, at which time it was agreed in open court between the attorneys for the plaintiff and the attorneys then representing the defendants that the cause be submitted to the court upon an agreed statement of facts to be prepared by counsel. Facts contained in the stipulation submitted to the court and necessary to an understanding of the case are as follows: "It is hereby agreed by and between the parties hereto, by their respective undersigned attorneys that the following is a statement of the facts pertaining to the issues involved in the above entitled action, and that the same shall be presented to the Court for decision and judgment thereon without the necessity of making any Findings of Fact or Conclusions of Law herein, towit: * * * That on the 23rd day of April, 1931, the Federal Land Bank of Omaha Nebraska, held a valid existing mortgage upon the above described real property and other property owned by the plaintiffs and used in connection therewith, amounting at said time to the sum of Fifty-one Hundred Dollars ($5,100.00), dated March 20th, 1923, and recorded in the office of the Register of Deeds of Pennington County, South Dakota, in Book 54 of Mortgages, at page 419, upon which mortgage there is now due and unpaid the principal sum of Four Thousand, One Hundred Forty-nine and 98/100 Dollars ($4,149.98), besides interest thereon at the rate of three and one-half per cent per annum from the 1st day of April, 1937, principal and interest amounting at this time to the sum of Forty-two Hundred Eighty-eight and 67/100 Dollars ($4,288.67)."

On March 25, 1938, the court upon this stipulation entered a judgment reciting that if defendants did not make payment in full of taxes which had accrued against the land described in the contract and the principal sum of $4,149.98 and accrued interest due upon the federal land mortgage on or before the 1st of July, 1938, all rights of the defendants under the contract would be thereupon forever barred and foreclosed.

On June 25, 1938, defendants filed their motion to be relieved from the stipulation and to vacate the judgment. Plaintiffs were required to show cause why the relief prayed for in the motion should not be granted. The affidavit of defendant Louise G. Rogers submitted in support of the motion tends to prove that the defendants were not present at the trial, that the stipulation was entered into without the knowledge or consent of the defendants and that the attorneys then representing them were mistaken as to certain facts. The affidavit contains the following recital: "That said stipulation contained the statement that there was then due and unpaid on the mortgage to the Federal Land Bank, the principal sum of $4,149.98 besides interest thereon since April 1, 1937, at the rate of 3 1/2% per annum or the total sum of $4,288.67, whereas the fact is that the loan secured by said mortgage is an amortized loan; that said loan was made on March 20, 1923, and is payable in equal semi-annual installments over a period of 34 1/2 years; that on the date of the institution of this action no installment of either principal or interest on said mortgage was passed due and unpaid, and that on the date of the signing of said stipulation only one principal installment in the amount of $51.63 which had become due was unpaid, and that the entire principal of said mortgage would not be due for 19 1/2 years from said date; that said principal installment was due on October 1, 1937, but the mortgagee, the Federal Land Bank had agreed to defer the payment of said installment upon the payment of the interest payment of $72.62 which was also due on October 1, 1937; that on the date of the signing of said stipulation only one interest payment was past due, that of October 1, 1937, in the...