De Luce v. Root

Citations

• 12 S.D. 141
• 80 N.W. 181
• 1899 S.D. LEXIS 94

Syllabus

<p>1. Plaintiff, a. junior mortgagee oí personal property, sued to recover the same from the sheriff, who held it in foreclosure proceedings brought by a senior mortgagee, her petition showing the nature, of her cause of action and the execution of the mortgage which was on record in the county where the suit was brought. There was no doubt of plaintiff’s right to recover, if a tender of payment of the prior mortgage was good. No defects appeared in the complaint that were not curable by amendment. The court overruled an objection to evidence based on the ground that the complaint stated no cause of action, after which the mortgage was introduced in evidence. Held, there was no reversible error.</p> <p>2. A junior mortgagee of personal property is entitled to its possession as against a sheriif holding it in foreclosure proceedings brought by a senior mortgagee, when he offers to pay a sum in excess of the amount due on the senior mortgage, expenses and costs, and the sum is refused 'as being inadequate.</p> <p>3. In proceedings to foreclose a chattel mortgage, no costs and expenses can be collected other than those specified in Laws 1889, Chap. 28, relating to the foreclosure of chattel mortgag'es.</p> <p>Fuller, J. dissenting.</p>