Alexander v. Ransom

Citations

• 16 S.D. 302
• 92 N.W. 418
• 1902 S.D. LEXIS 114

Syllabus

<p>1. Laws 1901, c. 105, §1,.'provides that in suits against administrators, etc., neither party, mor any one interested in the subject of the action, shall be allowed to testify adversly to the other party as to any transaction whatever with the decedent, unless called by the opposite party. Held,' that a witness’ statement that no action had been had for the recovery of the debts secured by a mortgage, which was the foundation of the suit, was not within the statute, though the' mortgagor was dead.</p> <p>2. A person is not incompetent, under the statute, to testify as to a conversation which he heard between an intestate and a party’s agent, though he was in company with the agent at the latter’s request, and after-wards became the attorney of the party in the litigation.</p> <p>3. Comp. Laws, §4343, provides that a lien is not extinguished by lapse of the time within which an action can be brought on the principal obligation. Held, in an action to reinstate and foreclose a mortgage, that the introduction of the mortgage and note, upon which no payments were indorsed, and a witness’ testimony that the face of the note was due, with interest from maturity, was sufficient to show the amount for which a foreclosure would lie, though the note-was barred.</p> <p>4. Comp. Laws §4880, provides that persons severally liable on the same obligation, including notes, may all or any of them be included in the same action at the plaintiff’s option. Held, that it was optional with the plaintiff, suing to réinstate and foreclose a mortgage of which he was assignee, to make the original mortgagee, who. was' his agent, a party.</p>