Yankton Bldg. & Loan Ass'n v. Dowling

• Decision Date: 07 March 1898
• Citation: 10 S.D. 540,74 N.W. 438
• Court: South Dakota Supreme Court
• Parties: YANKTON BUILDING & LOAN ASS'N v. DOWLING et al.

10 S.D. 540

74 N.W. 438

YANKTON BUILDING & LOAN ASS'N

v.DOWLING et al.

Supreme Court of South Dakota.

March 7, 1898.

Appeal from circuit court, Yankton county; E. G. Smith, Judge.

Action by the Yankton Building & Loan Association against M. P. Dowling and another. Judgment for plaintiff, and defendants appeal. Affirmed.Gamble & Dillon, for appellants. French & Orvis, for respondent.

HANEY, J.

This litigation relates to the realty involved in Yankton Building & Loan Ass'n v. Dowling (decided at the present term) 74 N. W. 436, to which reference should be had for an outline of the facts presented by both appeals. After the determination of that case in the circuit court, plaintiff, adopting the theory contended for by the defendant and held by the court, that the deed from Bordeno to plaintiff, and the contracts between it and Dowling, are in law a mortgage, began this action to foreclose its lien, and covered judgment, from which, and an order denying a new trial, defendants appealed. It having been admitted in this action that the contracts and deed constitute a mortgage, the only material questions involved, as we view the proceedings, are these: (1) Did plaintiff part with its cause of action before bringing this suit? (2) What amount, if any, above $500, was due upon the mortgage when this action was commenced?

Before the commencement of this action, and after Dowling had made default in the payment of interest according to the terms of the second contract, plaintiff executed and delivered to one George Tammen a warranty deed, whereby it purported to convey the fee-simple title to the property, and at the same time Tammen and wife executed and delivered to plaintiff a mortgage, whereby they purported to mortgage the premises to plaintiff. Such deed and mortgage were recorded prior to the commencement of this action. In the absence of any evidence or finding concerning the intent of the parties, aside from the execution, delivery, and recording of this deed and mortgage, the trial court correctly concluded “that at the time of the execution of the deed hereinbefore referred to, from the Yankton Building & Loan Assocation to George Tammen, the plaintiff had no title to the premises described in said deed, and no interest therein, except a lien created by the deed executed by William T. Bordeno and contracts between plaintiff and the defendant M. P. Dowling, and no title passed to said Tammen by reason of the execution and delivery of said deed; that the execution and delivery of said deed to said Tammen did not convey to said Tammen plaintiff's mortgage lien upon the property therein described; that said mortgage lien has never been assigned, but is now owned by plaintiff.” In this state, “notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien.” Comp. Laws, § 4330. “A lien is to be deemed accessory to the act for the performance of which it is security, whether any person is bound for such performance or not, and is extinguishable in like manner with any other accessory obligation.” Id. § 4341. “The transfer of a thing transfers also all its incidents unless expressly excepted; but the transfer of an incident to a thing does not transfer the thing itself.” Id. § 3243. It is neither shown by evidence, nor found by the court, that plaintiff intended to, or did, transfer the debt to secure which its mortgage was given. Plaintiff had no title to transfer, and its deed to Tammen did not have the effect of assigning its mortgage, or transferring the debt secured thereby. This is the view generally held in states where the legal title is regarded as remaining in the mortgagor. Jones, Mortg. § 808; Swan v. Yaple, 35 Iowa, 249; Peters v. Bridge Co., 5 Cal. 335;Mack v. Wetzlar, 39 Cal. 247.

It is unnecessary to decide whether or not the court erred in receiving in evidence the judgment roll in the case of Yankton Building & Loan Ass'n v. Dowling, for the reason that every fact required to sustain the judgment below was either admitted by the pleadings or...