Stevens v. Osgood

Citations

• 18 S.D. 247
• 100 N.W. 161
• 1904 S.D. LEXIS 46

Syllabus

<p>1. An ex parte proceeding- taken by a mortgagee under Rev. Code Civ. Proe. § 636, authorizing foreclosure by advertisement under power of sale given by mortgagor as part of the security, is not an action within section 12, defining an action as an ordinary proceeding in a court by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, and hence the statutes limiting the time within which actions may be brought are not applicable thereto.</p> <p>2. Independently of the equitable defenses of laches and estoppel by unreasonable delay, there is no limitation on the time when a mortgage may be foreclosed by advertisem'ent under power of sale given therein as part of the security.</p> <p>3. Where a mortgagee was proceeding under Rev. Code Civ. Proc. § 636, authorizing foreclosure by advertisement under power of sale, and the mortgagor procured an order restraining the proceeding and requiring foreclosure by action pursuant to other provisions of the same section, any errors in the action are not available to the mortgagor, it appearing that the mortgagee was acting within his rights in proceeding to foreclose by advertisement.</p>