Upton v. Hugos

Citations

• 7 S.D. 476
• 64 N.W. 523
• 1895 S.D. LEXIS 96

Syllabus

<p>1. When the rights of innocent third parties will be prejudiced in no manner, a court of equity will restore the record, and give a first mortgage priority, as between a senior and junior incumbrancer, where it clearly appears that the junior mortgage was taken subject to, and with actual knowledge of, the existence and record of such prior mortgage, when the same has been subsequently discharged of record by mistake and in ignorance of such intervening lien, for the sole purpose of substituting a new mortgage for the amount due, according to the terms of a promissory note to secure which the prior mortgage was executed and delivered.</p> <p>2. Answers to special interrogatories, submitted to a jury by a court of equity, which are in dirict conflict with the undisputed evidence, should be disregarded, and judgment should be entered upon and in accordance with findings of fact justified and sustained by the evidence submitted at the trial.</p> <p>(Syllabus by the Court.</p>