Kelley v. Narregang Investment Co.

162 N.W. 386, 38 S.D. 632, 1917 S.D. LEXIS 67

• Court: South Dakota Supreme Court
• Decided: April 30, 1917
• Docket: File No. 4030
• Status: Published

Opinion

McCOY, J.

The plaintiff alleged by his complaint that on the 20th day of October, 1913, he executed and delivered to defendant a certain mortgage covering certain lands situated in Brown county to secure a promissory note for $7,000 that day executed and delivered by plaintiff and wife to defendant; that as a part of said transaction defendant agreed to deliver to plaintiff the sum of $7,000 -as the consideration for said note and mortgage; that thereafter defendant caused said- mortgage to be recorded; that defendant neglected and refused to- pay or deliver to plaintiff the said sum of $7,000, or any part thereof, and never paid to plaintiff any consideration whatever for the execution of said note and mortgage, but afterwards canceled and rescinded its agreement to furnish to- plaintiff said $7,000- as consideration for said note and mortgage; that thereafter plaintiff demanded of defendant that it execute and deliver to him a certificate of discharge of said mortgage, at the expense of plaintiff, so acknowledged and executed as to entitle it to- be recorded, or that defendant enter or cause to be entered; satisfaction of s-aid mortgage of record, and’ that plaintiff 'offered to pay to 'defendant the sum of $25 more than- sufficient to pay the expense of making such satisfaction; that defendant refused to make such, satisfaction or -cause said mortgage to be satisfied o-f record^ that thereafter - plaintiff was compelled to commence action to cancel said mortgage of record, and was compelled to employ an attorney ¡and incur large expense in procuring the satisfaction of said mortgage; that a trial was 'had in the circuit court resulting in a decree in favor of plaintiff adjudging that said mortgage was of no validity and directing; defendant to execute a satisfaction thereof; that in prosecuting said action and securing the cancellation and satisfaction of said mortgage the plaintiff was compelled to incur for expenses and attorney’s fees, the sum' of $350, and was compelled to spend his time and expense in traveling and preparation and trial of said action of the reasonable value of $50; that defendant is indebted to plaintiff in the sum of $100 forfeiture and said damages under the provisions of section 2061, -Civil Code; that plaintiff has been damaged fey reason of defendant’s failure to1 release and discharge said mortgage in the sum of $500, the same being $400 actual damages and a penalty of $100 as provided by said section 2061. To this complaint the defendant interposed á demurrer upon the ground that the same does not state facts sufficient to constitute a cause of action. From- an order overruling said demurrer, the defendant appeals.

The particular contention of the appellant is that the complaint fails to state that the plaintiff ever paid any money to- defendant to -obtain the satisfaction of the indebtedness secured by said mortgage. The conclusive answer to this contention is that there never was, as clearly appears from the allegation of the -complaint, any indebtedness or consideration from- plaintiff to defendant to pay or satisfy; that the contract was rescinded by defendant, and the $7,000 consideration agreed, to be delivered to plaintiff for the making of said mortgage was never delivered to plaintiff. The mortgage -in question was satisfied and extinguished by -defendant’s rescission -and failure to' pay to plaintiff the $7,000 consideration therefor. We are of the opinion that the complaint states a cause of action.

The -order appealed from is affirmed.