Jones v. Fidelity Loan & Trust Co.

Citations

• 7 S.D. 122
• 63 N.W. 553
• 1895 S.D. LEXIS 47

Syllabus

<p>1. The term “mortgagor,” in the first clause of section 4365, Comp. Laws, is construed to include “his grantee or heirs.”</p> <p>2. Where a complaint in an action for the penalty and damages under the above section follows substantially the language of the statute, it is sufficient.</p> <p>3. Where a note secured-by mortgage upon property in this state is executed in this state, and the note is made payable in another state, but contains the stipulation, “it is agreed that this note is executed and is to be construed under the laws” of this state, it will be treated as not only made in, but payable in, this state in construing it, and determining the rights of the parties under the note and mortgage.</p> <p>4. Where, in a certificate of discharge of a mortgage presented to a mortgagee to be executed, the acknowledgment is left blank, it will be presumed that, when properly signed by the mortgagee, the blank will be properly filled by the officer taking the acknowledgment, whose duty it is to fill up the blank in the same.</p> <p>5. The mortgagee, upon receiving a mortgage, assumes the statutory and implied liability of discharging the same upon the full payment of the debt secured thereby; and he can only relieve himself from this liability by assigning such mortgage to an assignee who is not only vested with power to discharge such mortgage, but whose assignment is legaily recorded, in order that he may properly discharge the same of record, and who thereby becomes legally liable to, the mortgagor in case he neglects or refuses to so discharge the same upon full payment. Kellam, J., nouconcurring.</p> <p>6. The penal laws of a state have no force beyond the boundaries of the state in which they exist. •</p> <p>7. A demand made in another state upon the mortgagee, and his refusal or neglect there to execute a discharge of the same, does not subject such mortgagee to the penalty provided by section 4365, Comp. Laws, but will render him liable for any damages the m