Loomis v. Le Cocq

81 N.W. 633, 12 S.D. 324, 1900 S.D. LEXIS 41

Opinion

Fuller, P. J.

At the trial of this action to foreclose a mortgage on real property a decree as prayed for was entered upon findings of fact and conclusions of law favorable to plaintiff, and the defendants appeal. Their only contention is that the court erred in finding that Le Cocq and his wife owned the land when they executed the mortgage, for the sole reason that respondent failed to allege such fact in his complaint. The execution of the mortgage, containing the usual covenants of seisin and against incumbrances, being admitted, and payment the only defense, appellants, even if title can be denied by mortgagors and those holding under them, are in no position to raise the question now for the first time, and in the absence of anything to the contrary, it will be presumed that evidence sufficient to sustain the finding was admitted without objection. Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057; Wright v. Sherman, 3 S. D. 290, 52 N. W. 1093, 17 L. R. A. 792. The judgment of the circuit court is affirmed.