Trenery v. American Mort. Co.

• Citation: 11 S.D. 506,78 N.W. 991
• Parties: F. A. TRENERY, Plaintiff and appellants, v. AMERICAN MORTGAGE COMPANY, and W. A. Walker, Defendants and respondents, and Margaret J. Spohn, Mary E. Williams, and Elmer Williams, Interveners.
• Decision Date: 04 April 1899
• Court: Supreme Court of South Dakota

11 S.D. 506

78 N.W. 991

F. A. TRENERY, Plaintiff and appellants, v. AMERICAN MORTGAGE COMPANY, and W. A. Walker,

Defendants and respondents,

and

Margaret J. Spohn, Mary E. Williams, and Elmer Williams,

Interveners.

South Dakota Supreme Court

Appeal from Circuit Court, Bon Homme County, SD

Hon. E. G. Smith, Judge

Affirmed

W. T. Williams, J. D. Elliott, Zink & Boseberry

Attorney for appellants.

N. J. Cramer

Attorney for respondent.

Opinion filed April 4, 1899

FULLER, J.

A trial of this action, instituted in equity by plaintiff, a junior mortgagee, to annul, upon the ground of fraud and collusion, a mortgage foreclosure had under a power of sale, and to cancel, as invalid, a sheriffs’ deed, executed upon such proceedings, resulted in a judgment, based upon findings of fact and conclusions of law, favorable to the American Mortgage Company, and its co-defendant and grantee, W. A. Walker.

The following are some of the facts essential to a determination of questions presented by plaintiff on appeal from the judgment and from an order overruling a motion for a new trial: The interveners, having purchased the premises described in the complaint from appellant in January, 1894, mortgaged the same to the Iowa Loan & Trust Company to secure a loan of $1,500 obtained through respondent American Mortgage Company, and at the same time executed to the latter a second mortgage upon the premises to secure the payment of $67.50, commission for obtaining such loan, and appellant, to secure the balance of the purchase price, took a third mortgage for $2,500.

A proper determination of the questions presented requires an examination of the foreclosure proceedings, upon which is based a sheriffs’ deed under which respondents claim title as against the rights of appellant, whose counsel maintain that the notice of foreclosure sale, though sufficient as to form, is invalid, for the sole reason that publication was not made at the county seat in the newspaper nearest the mortgaged premises. While conceding that the notice appeared for the full time required in the Citizen-Republican, a weekly newspaper of the proper county, having at the time, and for many years prior thereto, a continuous circulation of 480 copies, 300 of which were sent to subscribers within the county, some of whom resided in the immediate neighborhood of the land, it is urged that a fraud resulted from the selection of this Scotland newspaper, 18 miles away, instead of one having a greater circulation, published near the premises, and at Tyndall. the county seat. We perceive no dishonest motive, and think the Citizen-Republican comes clearly within the statutory definition of a legal newspaper for the publication of mortgage foreclosure notices under a power of sale, requiring that such newspapers

“shall have a bona fide circulation of two hundred (200) copies weekly, and shall have been published in the county for at least one (1) year prior to the publication of such notices, and be printed, either in whole or in part, in an office maintained at the place of publication.”

Laws 1895, c. 1.31. To prevent injury by the fraudulent publication of legal notices in transitory and obscure newspapers, the least likely to attract public attention, and to avoid the disturbance of titles, based upon mortgage foreclosures; on account of refined distinctions as to the character and location of the newspaper in which sales were advertised, the legislature has wholesomely specified the essentials of a “legal newspaper for the publication of legal and other official notices,” and the Citizen-Republican meets every requirement. In the notice, as published once a week for seven weeks, successively, it is recited that

“said mortgage will be foreclosed by a sale of the mortgaged premises therein described, at public auction, at the front door of the courthouse, in the city of Tyndall, and county of Bon Homme, and state of South Dakota, on the 11th day of January, 1896, at ten o’clock in the forenoon of that day. The said mortgaged premises are situated in the county of Bon Homme, in the state of South Dakota, and are described as follows, to-wit: The east half (E½) of the west half (W½) and the west half (W½) of the east half (E½), of section twenty-six (26), in township ninety-four (94) north, of range fifty-nine (59) west.”

The trial court found that at 10 o’clock in the morning of the 11th day of January, 1896...