Stacy v. Smith

• Decision Date: 29 July 1896
• Citation: 68 N.W. 198,9 S.D. 137
• Parties: STACY v. SMITH et al.
• Court: South Dakota Supreme Court

68 N.W. 198

9 S.D. 137

STACY v. SMITH et al.

Supreme Court of South Dakota

July 29, 1896

Appeal from circuit court, Sully county; Loring E. Gaffy, Judge.

Action by James R. Stacy against Daniel M. Smith and others. Decree for plaintiff, and defendants appeal. Affirmed.

Shunk & Rowe, McMillan & Dunlap, and Davis, Lyon & Gates (Albert Gunderson, of counsel), for appellants.

Crawford & De Land, for respondent.

CORSON P. J.

This was an action to foreclose a mortgage, and to cancel two certificates of sale made on a foreclosure by advertisement. Judgment was rendered for the plaintiff, and from the judgment and order denying a new trial the defendants appeal.

The facts, briefly stated, are that defendants Haskins and wife executed a note and mortgage to one C. A. Kibbling, bearing date October 30, 1885. The mortgage was upon land in Sully county, and contained the usual power of sale on default in the payment of the note. In 1886 this note and mortgage were transferred to the plaintiff, who was a resident of the state of Vermont. In 1892, the said note not having been paid, the plaintiff instructed his attorney, C. H. Walworth, Esq., a resident of Omaha city, Neb., to proceed and foreclose said mortgage. The said Walworth thereupon prepared a notice of sale, in the usual form. This notice was published, and a sale was made thereunder by one Albert A. Faust, who claimed to be the sheriff of Sully county; and the property was bid in by an agent of the plaintiff for the sum of about $850 the full amount of the principal and interest due on the note and costs. On the same day, and at about the same hour, one Daniel M. Smith, who also claimed to be the sheriff of said Sully county, made a sale of said property, under the same notice, for the sum of $10.60, to one Simmons, and issued to him the usual certificate of sale, and subsequently made and executed a deed for said property. It is under this deed that the principal defendant herein claims title as the grantee of said Simmons. Subsequently a contest then pending between the said Faust and the said Smith as to the right to the office of sheriff of Sully county was decided in favor of said Smith. The court finds that the plaintiff, through his authorized agents, in good faith, requested said Faust, who assumed to act as sheriff of said county, to act as auctioneer in making said sale, and, in good faith, made said bid for the same, but it finds "that the aforesaid purported sale by the defendant Albert A. Faust, and the aforesaid certificates and affidavits of sale executed by him, were invalid, and without force and effect, for the reason that the said Albert A. Faust was not in truth and fact the sheriff of said Sully county at the time he assumed to make said sale as such." This finding is not excepted to by the defendants, and hence will be accepted as conclusive as to the invalidity of the Faust sale. The court finds as to the Smith sale as follows: "The court further finds that at the hour of two o'clock p. m. on the said 25th day of April, 1892, the defendant Daniel M Smith appeared at the place named in said notice of sale, and undertook to sell said land; that the said defendant Daniel M. Smith did not have, at the time of offering said land said note and mortgage in his possession, or any affidavit of the publisher showing the publication of said notice of sale and had not been authorized in any manner by the plaintiff to make said sale, but the said defendant Daniel M. Smith had been notified by the plaintiff, through his duly-authorized agent, that the plaintiff did not desire him to make said sale; that without any authority from the plaintiff, and against the wish of the plaintiff, the defendant Daniel M. Smith then and there offered said land for sale, and the defendant Tazewell M. Simmons, with knowledge of the fact that the defendant Daniel M. Smith had no authority whatever to sell said land, or to offer the same for sale, then and there offered the sum of 10 and 60/100 dollars for said land, and the said defendant Daniel M. Smith then and there pretended to strike off and sell said land to the said defendant Tazewell M. Simmons for the said sum of 10 and 60/100 dollars." The court further finds that the aforesaid purported sale of said property by the "said Daniel M. Smith to the defendant Simmons was without any authority from the plaintiff, and was wholly unauthorized, invalid, and of no force and effect." The court also finds "that the acts of the defendant Daniel M. Smith in attempting to make said sale, and the act of the defendant Tazewell M. Simmons in attempting to purchase the same, and the acts of said defendants in executing and filing the said certificate of sale and duplicate thereof, and affidavit of sale, amounted to a fraud, and were in fact a fraud, upon the rights of the plaintiff herein; and the aforesaid certificate of sale, and duplicate thereof, and affidavit of sale, made and executed by the said Daniel M. Smith as aforesaid, are of no force and effect, and the same, with the record thereof, should be canceled and held for naught." These latter findings were excepted to as not supported by the evidence, and the evidence will be briefly considered as bearing upon these findings.

It appears from the evidence that Faust had, for some years prior to this sale, been the sheriff of Sully county. It also appears that, in previous years, Walworth, as attorney for various parties, had foreclosed mortgages in Sully county and that Faust, as sheriff, had made the sales. Walworth, at the time of giving the notice of sale, and at the time of the sale, had no knowledge that there was any question as to Faust's title to the office of sheriff. Walworth forwarded the notice of sale to Mr. J. H. Gropengeiser, then editor of the Sully County Watchman, a newspaper published in that county, and requested him to have Mr. Faust make the sale, and to bid in...