Klein v. Olstad

210 N.W. 18, 50 S.D. 310, 1926 S.D. LEXIS 364

• Court: South Dakota Supreme Court
• Decided: September 7, 1926
• Docket: File No. 5592
• Status: Published

Opinion

PÜLLE.Y. J.

The defendant and one Hegnes» purchased a quarter section of land from plaintiffs. The conveyance of thd land was made subject to two mortgages: one for $8,200, and the other for $2,8co The grantees assumed these two mortgages and agreed to oay them- as a part of the purchase price of the land.' They paid the $2,800- mortgage. They then defaulted in the payment of the tnxes and the interest on the other mortgage and said mortgage was foreclosed. The land was sold, but did not sell for enough to pay the amount of the mortgage, and a deficiency judgment was taken for the unpaid balance. Plaintiffs paid this judgment, and now bring- this action to recover the amount paid, basing their r-’ght of recovery upon defendant's agreement, made when lie- purchased the property, to pay said mortgage.

There is no dispute as to the above facts and the only -defense is that the debt secúred by the mortgage was not due at the time of the foreclosure suit. The appeal is from the judgment only. There are but two assignments of error': (1) That the complaint is insufficient to- support the judgment; and (2) that the findings1 of the court do- not support the conclusions or the judgment. There is notl 'ng in either the complaint or the findings of fact to-show when t^p note secured by the mortgage assumed by appellant became due. The judgment is amply supported by the complaint and the findings of fact, and the sufficiency of the evidence is not presented by -,he record.

The judgment appealed from is affirmed.

DILLON, J., not present.