Shelby v. Bowden

Citations

• 16 S.D. 531
• 94 N.W. 416
• 1903 S.D. LEXIS 119

Syllabus

<p>1. Comp. Laws 1887, § 3272, provides that an instrument is deemed to be recorded when it is deposited in the register’s office for record. Sections 5411, 5412, provide that mortgages containing a power of sale may be-foreclosed by advertisement if they have been duly recorded. Held, that a foreclos re by advertisement of a mortgage containing a power of sale was not rendered void because the recording officer negligently omitted to transcribe the clause of the mortgage containing the power of sale into the record book.</p> <p>2. A mortgagor, who had executed a mortgage containing a power of sale, acquiesced in the foreclosure thereof, and delivered possession to the purchaser under the sheriff’s deed. He later quitclaimed to defendant, who claimed under the foreclosure, and had in the meantime released a valid prior mortgage in reliance on the regularity of the proceedings at the sale. The mortgagor had previously given a warranty deed to the premises to another, and through various mesne conveyances a paper title passed to plaintiff. During the time of all these conveyances defendant was in actual, notorious, and peaceable possession, claiming through the foreclosure, and the conveyances through which plaintiff claimed were, therefore, void under Comp. Laws 1887, § 3303, providing that a grant of real property in the actual possession of another claiming under a title adverse to the grantor is void. Held, that plaintiff was estopped to assert title to the premises in reliance on an alleged invalidity in the foreclosure proceedings.</p>