Home Inv. Co. v. Clarson

Citations

• 15 S.D. 513
• 90 N.W. 153

Syllabus

<p>3. Where a purchaser at a second mortgage sale, of which the third ' mortgagee had no notice, which fact was not Known to the purchaser, purchased a release of the first mortgage, and subsequently sued to be subrogated to the rights of the first and second mortgagees, that he was a stranger to the matters at the time of his purchase was no bar to relief.</p> <p>2. Plaintiff’s complaint having alleged that he believed the third mortgagee had been duly served with summons, the complaint showed a mistake of fact on plaintiff’s part.</p> <p>3. The complaint having alleged that the mortgagor had left the country, insolvent, the complaint was not demurrable as disclosing no lack of an adequate remedy at law.</p> <p>4. The complaint was not insufficient for not alleging that the mortgag- or owned the property since, it being alleged that he executed the mortgages, and all the parties claiming under them, it would be presumed he was the owner.</p> <p>5. Where one purchased at a second mortgage sale, of which the third mortgagee had no notice, which fact was unknown to the purchaser, who subsequently secured a release of the first mortgage, and 10 years after the purchase sued to be subrogated to the rights of the first and second mortgagees, the suit was not barred by laches, it not being shown that the third mortgagee had suffered by the delay.</p> <p>6. It appearing that the third mortgagee’s position was the same as when his security was taken, and that no third party would be injured by the subrogation, plaintiff was entitled to the relief sought.</p>