Stoddard v. Lyon

Citations

• 18 S.D. 207
• 99 N.W. 1116
• 1904 S.D. LEXIS 43

Syllabus

<p>3.In an action to enforce a mortgage it was error to admit in evidence without proof of execution the note secured by the mortgage, where defendant denied its due execution.</p> <p>2. Code Civ. Proc. § 326, requires the answt r to contain a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. A complaint to enforce a mortgage averred in the first paragraph the execution and delivery of the mortgage note. The answer of a defendant who claimed under a tax title denied that he bad any knowledge or information sufficient to form a belief as to whether any of the allegations in such paragraph were true. Held, that there was' no presumption that such defendant had any knowledge as to the execution of the note, and the answer was sufficient to raise the issue of its execution.</p> <p>3. Possession by plaintiff of a mortgage note was not sufficient proof of its due execution in an action to enforce the mortgage in which the execution of the note was denied.</p> <p>4. In an action to foreclose a mortgage, in which no judgment was demanded against the makers of the note which the mortgage was given to secure, it was essential to plaintiff’s cause of action that the note be produced in evidence.</p> <p>5. The note being necessary, its admission without proof of execution was not harmless error.</p> <p>6. An assessment roll was properly headed as to townships, county, etc., and across the tops of the columns were the words and letters: “Name of owner. What part N. E. N. W. S. E. S. W. Sec. or Lot. Twp. or Block. Range. Acres.” In the first column was placed the name of the owner. Underneath the letters “N. E.” were ditto marks, and under the columns for Sec., Twp., Range, and Acre were placed, respectively, the numbers “23,” “305,” “68,” “160.” Held, to constitute a valid assessment of the northeast quarter of section 21.</p> <p>7. Where any person lookin