McGillivray v. McGillivray

Citations

• 9 S.D. 187
• 68 N.W. 316
• 1896 S.D. LEXIS 135

Syllabus

<p>1. In an action to foreclose a real estate mortgage on property on which a county has a junior lien, by virtue of taxes assessed upon the personal property of the mortgagor, defendant county’s answer, alleging payment and cancellation of the note, and that the mortgage has been kept outstanding in order to defeat the lien of the county for its personal property tax, states a good defense; and a further allegation that the mortgage was kept outstanding in order to defraud the minor heirs of the intestate mortgagor may be treated as surplussage.</p> <p>2. Surplussage in a pleading may subject it to a motion to strike out the redundant and irrelevant matter, but does not render the pleading demurrable.</p> <p>3. The court, upon a trial, will grant such relief as the facts pleaded will warrant, without regard to the prayer for relief.</p>