Hardin v. Graham

160 N.W. 850, 38 S.D. 222, 1917 S.D. LEXIS 3

• Court: South Dakota Supreme Court
• Decided: January 6, 1917
• Docket: File No. 3932
• Status: Published

Opinion

GATES, P. J.

A petition for rehearing has been filed on behalf of appellant, the successful party upon the appeal in this case, the opinion in which, appears in 159 N. W. 895, which petition, among* other things, attacks the decision for that we held that the mortgage still stands unforeclosed and rests -upon the unexecuted decree of foreclosure, and that if redemption is made such decree will stand1 as an incumbrance upon the property, and that upon redemption the premises be decreed tó 'be in appellant subject to the unexecuted decree of foreclosure.

Upon further consideration and in view of the fact that the Union Trust Company, the trustee for the bondholders, is not a party to this action, we deem it test to leave to the federal court the determination of whether the mortgage still stands unfore-closed and whether after redemption is made the decree of foreclosure will stand as an incumbrance upon the property and wliat the rights of the parties will ¡be after such redemption is made. Upon those questions we express no. view, and the previous opinion is to that extent modified.

The judgment appealed from is reversed, and the trial court is directed to enter judgment allowing" Hardin within a reaisonahle time to pay into court the amount requisite to redeem from the sale made by the federal court receivers, and that upon such payment it be adjudged that Hardin has. made redemption from such receivers’ sale. If Hardin shall fail to make such redemption within such reasonable time as the court may direct, then the judgment appealed from may he re-entered. The clerk will tax the costs under the notice therefor and exceptions thereto-heretofore filed, and no new notice need he given. The clerk will retain the remittitur for 15 days.

The petition for rehearing" is 'denied.

POUUEY, J., took no part herein.