Karcher v. Gans

Citations

• 13 S.D. 383
• 83 N.W. 431
• 1900 S.D. LEXIS 159

Syllabus

<p>1. The sale of a homestead under a power of sale contained in a mortgage is not a forced sale, within the meaning of Const. Art. 21, § 4 exempting homesteads from forced sales.</p> <p>2. Under Comp. Laws, § 2451, providing that “an incumbrance by the owner of a homestead shall bo of no validity unless the husband and wife * * * concur in and sign the same joint instrument, ” it is immaterial whether the wife acknowledges the execution of the instrument.</p> <p>3. Where defendant, with her husband, executed a mortgage on their homestead to secure a loan from plaintiff, the fact that defendant for four years gave no intimation that she had not properly acknowledged its execution as certified by the notary public estopped her from impeaching its validity on the ground that her acknowledgment was defective.</p> <p>4. Wht re defendant and her husband executed a mortgage on then’ homestead, and defendant, permitted her husband to take it and use it according-to bis judgment, sbe cannot be beard to claim that it was never delivered by her, and so never became a binding instrument.</p> <p>5. Since an entry into possession of mortgaged property prior to foreclosure is not necessary, the use of the word “entry” in the mortgage in suit was without meaning; and an obj-'clb n to the auctioneer’s affidavit, sheriff’s certificate of sale, and sheriff’s deed, at a sale op foreclosure, on the ground that no entry into possession had been shown, was not well taken.</p> <p>6. Since the duty of the sheriff to indorse the amount of the bid on the mortgage note, where he conducts a sale on foreclosure, is an official duty, over which the purchaser has no control, his failure to do so does not affect the validity of the sale, nor justify the exclusion of his certificate of purchase and deed given at such sale from evidence.</p> <p>7. Since the authority given by plaintiff to his agent to foreclose a mortgage on defendant’s property did not give the agent authority to extend the period