Nelson v. Caspary

195 N.W. 552, 46 S.D. 632, 1923 S.D. LEXIS 104

Opinion

GATES, J.

This is an action to set aside a mortgage foreclosure by advertisement. Findings and judgment were for plaintiff setting aside the sale. Defendants appeal from the judgment and an order denying new trial.

[1, 2] The action was not begun until nearly two months after the sheriff’s deed was issued. Ordinarily an action like this ought to ‘be brought before the time for redemption expires. There are no facts disclosed that would excuse plaintiff’s laches in that behalf. The trial was had and judgment rendered and order denying new trial made prior to the handing down of the opinion in Hagan v. Pratt, 46 S. D. 267, 192 N. W. 370, and the trial court in this case evidently misunderstood the effect of the decision in Fienup v. Kleinman, 42 S. D. 43, 172 N. W. 804. In this case the mortgaged premises although consisting of three contiguous quarter sections constituted but one farm. In Hagan v. Pratt, supra, in discussing Fienup v. Kleinman, supra, we said:

“Here the mortgaged premises undeniably consist of but one fam or tract. That is sufficient to sustain the foreclosure sale and the approval thereof by the trial court.”

Following that decision the judgment and order appealed from must be reversed1.

Note. — Reported in 195 -N. W. 552. See. Headnote (1), American Key-Numbered Digest, Mortgages, Key-No. 369(5), 27 Oyc. 1509 (1924 Anno.); (2) Mortgages, Key-No. 358, 27 Cyc. 1480.