Bennett v. Ellis

Citations

• 13 S.D. 401
• 83 N.W. 429
• 1900 S.D. LEXIS 158

Syllabus

<p>1. In an action by the assignee of a bank on a note, defendants’ answer set up that the note was signed by them as sureties only; that they were released from liability thereon by failure of plaintiff’s assignor to enforce the liability of the principals; that there was no consideration for its execution; that it was to be paid oat of a certain fund, and that it was not intended to create a personal liability, — and an accord and satisfaction. The evidence disclosed that the note was given for a pre-existing debt, and secured by mortgage on certain land; that prior to the present action plaintiff acquired a'tax title to the land, in his individual capacity, and took a decree confirming title in himself. Held, that this evidence did not tend to establish any of. the alleged defenses, and it was therefore proper to direct a verdict for plaintiff.</p> <p>2. Comp. Laws, §§ 5432-5435, providing that complaints in proceedings to foreclose mortgages shall state whether or not any judgment at law has • been obtained for the same debt, etc., and that where such judgment has been obtained no further proceedings shall be had, unless an execution has been issued on such judgment and returned unsatisfied, do not confine a mortgagee to one action for his debt, but recognize his right to maintain successive actions until satisfaction is obtained,</p> <p>3. A prior action instituted for the purpose of confirming an individual tax title to certain land mortgaged to the bank of which the tax-title holder was president did not constitute an action for the recovery of the indebtedness to the bank, so as to estop the president, as assignee of the bank, from subsequently suing on the mortgage.</p>