Peters v. Fell

Citations

• 15 S.D. 391
• 89 N.W. 1014
• 1902 S.D. LEXIS 21

Syllabus

<p>1. In a suit to reform and foreclose a mortgage, it appeared that the mortgage contained a misdescription of the property, due to the notary's mistake. The mistake was unknown to the parties. The mortgagor conveyed the premises intended to be covered by the mortgage to one who had knowledge of the mortgage and the error in the description, and who agreed to pay,it. Held, that the mortgagee, as against the mortgagor’s vendee, was entitled to a reformation of the instrument and a judgment of foreclosure, together with a personal judgment for a deficiency.</p> <p>2. An erroneous description in a mortgage described a part of the same section in which the land intended to be mortgaged was located. The mortgagor’s vendee knew of the mortgage and the mistake in the description. The vendee conveyed the property to one who had no such knowledge, who took it subject to recorded incumbrances, and who paid a consideration not grossly, inadeguite. The mortgagor’s vendee refused to give anything more than a special warranty deed. Held, that though such facts were insufficient to charge the second vendee with actual knowledge of the mortgage, and of the mistake in its description, the mortgagee, as against him, was entitled, under the circumstances of the case, to a reformation of the mortgage on condition that he repay such vendee the consideration paid.</p> <p>Haney, P. J., dissenting.</p>