Dillaway v. Peterson

Citations

• 11 S.D. 210
• 76 N.W. 925
• 1898 S.D. LEXIS 102

Syllabus

<p>1. Trustees of a church in 1890, executed, a joint note, secured by mortgage to plain Giil on the church property. In 1891, defendant, one of the trustees, purchased the property, and assumed the mortgage, and notified plaintiff that he had done so. Before the note matui ed, plaintiff not desiring the money, an extension of payment was arranged with defendant at the same rate of interest, for one year; and before its maturity, another extension was made; and defendant continued to pay the interest to plaintiff. Since defendant’s purchase, plaintiff corresponded with him exclusively, and made all extensions with him, and recognized him as liable for the debt, and made no reference 1o the other trustees, except in 1895, when, learning that the property had depredated in value, 'she inquired of defendant if the. other trustees were still liable. At the time the debt first matured, the property was ample to satisfy the same, and defendant owned considerable property; but at the time the action to foreclose was brought, the property was insufficient to pay the debt, a.nd defendant was insolvent. Held, that the trustees were discharged by the extensions from liability on the nole for any deficiency arising on the sale.</p> <p>2. Defendant purchased church property for 315,000, subject to plaintiff's mortgage of 38,000, the difference between the price and the mortgage being furnished by S. Defendant also purchased from S. a farm for 30,000, and the payment of both sums was secured by mortgage on the properties. Defendant tí. agreed that after the properties were sold by defendant, and the mortgages paid, whatever profit remained should be divided between them. S. Was not recognized in any manner in the transaction, and had no control over the premises, and plaintiff was not aware of his existence until shortly before the action to foreclose the mortgage was brought, which was a number of years after defendant’s purchase, a.nd from which time plaintiff had recognized on