Muller v. Flavin

Citations

• 13 S.D. 595
• 83 N.W. 687
• 1900 S.D. LEXIS 191

Syllabus

<p>1. Plaintiff’s grandfather executed a warranty deed to K., who paid the grantor $1,200. Thereafter plaintiff’s father, K., and her husband agreed that K. should deliver a deed of the land to plaintiff’s father, he to pay her $1,200 five years thereafter, and to pay all taxes on the land, and to give up possession at the end of five years, if the money was not paid. The father held possession for seven years, when he executed a release to K., who deeded the land to plaintiff. Prior to the re- ■ lease and the sale to plaintiff, defendant caused an execution against plaintiff’s father to be levied on his interest in the land. Held, 1hat the evidence sustained a finding' that the transaction amounted to a mortgage on the land to K., and hence the purchaser m execution obtained the equity of redemption that plaintiff’s father had in the land.</p> <p>2. The plaintiff could not be subrogated to the rights of K. in an action brought by him against the purchaser in execution to quiet title, in which the purchaser claimed the transaction between K. and plaintiff’s father and grandfather amounted to a mortgage, and that hence he had acquired the equity of redemption, where K. had not been paid in full by the plaintiff, and was not a party to the action.</p> <p>3. Under Comp. Laws, § 5118, declaring that all goods,- chattels, moneys, and other property, real and personal, not exempt by law, a.re liable to execution, a mortgagor’s equity of redemption is subject to sale on exe- * cution.</p> <p>4. Error in overruling an objection to a question was harmless where the answer was the same as facts testified to by other witnesses without objection.</p> <p>5. Comp. Laws, §5105, declaims* that the clerk shall docket a judgment by entering in the judgment docket the names of the judgment debtor of the party in whose favor it was rendered, the sum recovered, the date, of judgment, the da.y, year, hour, and minute that the judgment was docketed in his office, the page in the judgment