Andrews v. Wynn

Citations

• 4 S.D. 40
• 54 N.W. 1047
• 1893 S.D. LEXIS 40

Syllabus

<p>1. A complaint in an action to foreclose a mortgage brought by Edward H. Andrews, in which it is alleged that the defendant made, executed and delivered to E. H. Andrews his promissory note, and thereby promised to pay E. H. Andrews, etc., and that to secure the payment of said, note the said defendant made, executed and delivered to said E. H. Andrews a mortgage, and thereby mortgaged in fee to said E. H. Andrews certain lots, etc., but which fails to allege that the plaintiff and said E. H. are one and the same person, or that said E. H. has transferred said note and mortgage to the plaintiff, or that the plaintiff is the owner and holder of said note and mortgage, does not state facts sufficient to constitute a cause of action in favor of the plaintiff.</p> <p>2. This court cannot take judicial notice that Edward H. and E. H. are one and the same person, or that E. H. is not the full Christian name of a person.</p> <p>3. The last clause of Section 4927, Comp. Laws, is not applicable to an action to foreclose a mortgage. Such an action is not founded upon an instrument in writing for the payment of money only, but is an action to suject property to the payment of a debt. The implied allegations in actions under that section cannot be extended to embrace other actions under the Code.</p> <p>(Syllabus by the court.</p>