Male v. Harlan

91 N.W. 1117, 16 S.D. 178, 1902 S.D. LEXIS 95

• Court: South Dakota Supreme Court
• Decided: October 7, 1902
• Status: Published

Opinion

Haney, P. J.

Heretofore the appeal in this action was dismissed on motion of the respondent, Harlan, for the reason that the appellants, by proceeding to sell under a decree which directed the sale to be made subject to a lien in favor of the former, adjudged to be prior to the lien of the appellants’ mortgage, waived their right to appeal from so much of the decree as established the existence and priority of respondent’s lien. Male v. Harlan, 12 S. D. 627, 82 N. W. 179. Appellant’s application for rehearing was granted, and the grounds of the dismissal were exhaustively reargued by the able counsel of both parties. Further research and reflection have served to strengthen, rather thap weaken, the court’s confidence in the conclusion reached in its former decision. It appears to us that counsel for appellants, in reviewing immaterial expressions therein, lost sight of the one simple and controlling-proposition involved, namely, that whereas the decree directed the sale to be made subject to respondent’s lien, the validity of which was established by the decree itself, appellants necessarily recognized the existence and priority of such lien by executing the decree. They could not sell otherwise than as directed by the decree — that is, subject to respondent’s lien, as therein established — and therefore necessarily accepted the condition imposed by the lower court. If dissatisfied with such condition, they' should have secured a different decree- before reaping the benefits of its execution.

The views expressed in our former opinion are adhered to, and the appeal is dismissed.