Grant County v. Colonial & United States Mortg. Co.

Citations

• 3 S.D. 390
• 53 N.W. 746
• 1892 S.D. LEXIS 84

Syllabus

<p>1. Sections 4644, 4645, Comp. Laivs, establish the rule in this state that an instrument constitutes no cloud upon title, if its invalidity appear on its face, or if it necessarily appear from the eAddenee Avhich the party claiming under it must use in order to enforce it.</p> <p>2. A mortgage of real estate may be complete without any power of sale, (section 4336, Comp. Laws), and it is only a mortgage having an express power of sale that may be foreclosed by advertisement, (sections 5411, 5430, Comp. Laws.)</p> <p>3. A deed executed in pursuance of proceedings to foreclose a mortgage by advertisement is not made prima facie evidence of title, so that to maintain title under such a deed, a power to sell must be shown.</p> <p>4. A complaint, therefore, which only alleges that the mortgagors “made their certain mortgage, and by the terms thereof mortgaged the aforesaid premises,” shows no authority to foreclose by advertisement, and consequently states no reason, for enjoining such foreclosure sale, on the ground that such sale and deed would create a cloud upon the title to tlie mortgaged land so sold.</p> <p>5. In an action to remove or prevent a cloud, or to quiet title, where the owner of the equity of redemption does not show any threatened or probable injury liable to accrue pending the litigation, that might not be fully provided against by filing notice of Us pendens, he is not entitled to the extraordinary protection of a temporary injunction.</p> <p>6. Where all the equities of a complaint are positively, fully, and inevasively denied by a duly-verified answer, and neither side is supported by evidence outside the pleadings, a preliminary injunction ought not to stand.</p> <p>(Syllabus by the Court.</p>