Rosenbaum v. Foss

Citations

• 4 S.D. 184
• 56 N.W. 114
• 1893 S.D. LEXIS 66

Syllabus

<p>1. Under the provisions of Section 4644, Comp. Laws, a junior mortgagee can maintain an action to cancel as to himself a prior mortgage void or voidable as to him, and in respect to which there is a reasonable apprehension that, if left outstanding, it may cause him serious injury by lessening or impairing the value of his security.</p> <p>2. When a party would he required to introduce intrinsic evidence to defeat the title or claim of one holding or claiming under a written instrument, void or voidable as to him, the invalidity of such instrument is not apparent on its face, and such instrument does not come within the class of instruments specified in Section 4645, Comp. Laws.</p> <p>3. The rule that the grantee in a quit claim deed of real property takes the property svbjeot to all prior equities a.nd unrecorded ‘deeds of his grantor, though he have no actual or constructive notice of the same, even if in force in this state (a point not decided,) has no application to a hill of sale of personal property given and intended as a mortgage; and a bill of sale to a vendee in good faith for value of all the right, title, and interest of the vendor in the personal property conveyed with a warranty of title, followed by a delivery of the possession of such personal property, is valid as against prior untiled chattel mortgages of which such vendee had no actual or constructive notice.</p> <p>4. By the provisions of Section 4382, Comp. Laws, a chattel mortgage, to operate as constructive notice, must be filed in some county in which all ór a part of the property described in such mortgage is situated; and when a part of such property is situated in another county a copy of such original mortgage, duly authenticated by the register of deeds in whose office the original is filed, must be filed in such other county or counties in order to impart constructive notice of such mortgage in such other county or counties.</p> <p>5. Section 4379, Comp. Laws, is to be construed wi