Baker v. Baker

Citations

• 2 S.D. 261
• 49 N.W. 1064
• 1891 S.D. LEXIS 27

Syllabus

<p>1. The practice is well settled that, where there is a substantial conflict of evidence, the finding's of a court or jury will be accepted as conclusive by the appellate court.</p> <p>2. A court of equity will decree a specific performance of a parol agreement to g'ive a mortgage on real estate, where the party asking such relief shows a performance on his part of such agreement, by which he would suffer an injury amounting to fraud by the refusal of the other party to execute his part of the agreement by making such mortgage.</p> <p>3. Where a person pays a debt which is secured by a mortgage, or furnishes the money therefor, which is so used, at the solicitation and request of the debtor, with the agreement that the debtor shall ’make to the person so paying or so advancing funds therefor a mortgage to secure the same upon the real estate from which such mortgage was lifted, he is entitled, upon the refusal of the debtor to make such mortgage, to be held and regarded as the equitable assignee of the paid mortgage, and as such is entitled to a lien upon such real estate for the amount so advanced.</p> <p>4. In the absence of an agreement thereto, the taking of a promissory note for an antecedent debt will not be presumed to have been in payment or discharge of the original indebtedness, but the burden of proof is upon him who asserts that it was so taken.</p> <p>5. The mere fact that a chattel mortgage given to secure a promissory note has been foreclosed, nothing appearing as to the value of the property mortgaged, or what was realized from the foreclosure sale, does not raise the presumption that the property sold for enough to pay the debt and costs, and that it was so applied, and extinguished the debt.</p> <p>6. In such case, while the debtor is entitled to have credited the net proceeds of the foreclosure sale as a payment on his indebtedness, he cannot complain that the court has given him such credit without evidence to support it.</p> <p>(Syllabus by th