Langmaack v. Keith

Citations

• 19 S.D. 351
• 103 N.W. 210
• 1905 S.D. LEXIS 45

Syllabus

<p>1. Under Rev. Civ. Code, § 2042, defining a mortgage as a contract by which specific property is hypothecated for the performance of an act, without the necessity of a change of possession, and section 2044, declaring every transfer of an interest in property, other than in trust, made only as security for the performance of another act, to be a mortgage, except in case of a pledge of personal property, an instrument reciting the existence of a.debt owed by the first party to the third party, and conveying land to the second party to secure the same, and authorizing the second party, or his successor in the trust, to sell the land as prescribed by law for the foreclosure of mortgages under power of sale, if the first party defaults, is a mortgage, and controlled by the laws governing mortgages as to foreclosure, etc., although designated by the parties as a trust deed.</p> <p>2. Under Rev. Code Civ. Proc. § 637, requiring a mortgage, with its assignments, tobe duly recorded, to entitle the mortgagee or assignee to foreclose by advertisement, an attempted foreclosure by an assignee, without a written assignment having been executed, acknowledged, and recorded, is invalid, and does not take title out of the mortgagor.</p> <p>3. Where an agreed case stipulated that, if a certain foreclosure proceeding was invalid, plaintiff was the owner of the property, subject to the mortgage, a judgment for plaintiff should have expressly declared that his ownership was subject to defendant’s rights under the mortgage.</p>