Reilly v. Phillips
South Dakota Supreme Court
Appeal from circuit court, Minnehaha county. Hon. Flank R. Aikens, Judge. Action to determine adverse claims to real property. There was judgment for defendants and plaintiffs appeal. The facts are stated in the opinion. A real estate mortgage containing a power of sale cannot be foreclosed under that power by advertisement after the death of the mortgagor. A power of sale contained in a real estate mortgage in this state is not a power coupled with an interest.
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Appeal from circuit court, Minnehaha county. Hon. Flank R. Aikens, Judge. Action to determine adverse claims to real property. There was judgment for defendants and plaintiffs appeal. The facts are stated in the opinion. A real estate mortgage containing a power of sale cannot be foreclosed under that power by advertisement after the death of the mortgagor. A power of sale contained in a real estate mortgage in this state is not a power coupled with an interest. Hunt v. Rousmanier, 8 Wheat. 204; Johnson v. Johnson, 3 S. E. Rep. 606; Wilkins v. McGehee, 13 S. E. Rep. 84; Lockett v. Hill, 1…
1Opinion of the CourtKellam, J.
The object of this action is to determine the rights, respectively, of the appellants, who were plaintiffs below, and the respondents, who were defendants, in and to certain premises in the city of Sioux Falls. The facts are undisputed and ^re these: Margaret Reilly, in her lifetime, was the *606owner of the premises, and executed a mortgage thereon to Andrew C. Phillips, which was duly recorded. The mortgage contained the following power of sale: “And in case default shall be made in the payment of said sum of money, or any part thereof, at the time or times above specified for the payment…
2Cases cited20 opinions
- Hunt v. Rousmanier's AdministratorsSupreme Court of the United States · 1823
- Demarest v. WynkoopNew York Court of Chancery · 1817
- Wilson v. TroupCourt for the Trial of Impeachments and Correction of Errors · 1823
- Beatie v. ButlerSupreme Court of Missouri · 1855
- Knapp v. AlvordNew York Court of Chancery · 1843
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3Cited by8 opinions
- Elder v. Horseshoe Mining and Milling Co.South Dakota Supreme Court · 1897
- Brown v. HallSouth Dakota Supreme Court · 1913
- Grandin v. EmmonsNorth Dakota Supreme Court · 1901
- Brown v. SkotlandNorth Dakota Supreme Court · 1903
- State Ex Rel. Northwestern Mutual Life Insurance v. Circuit Court of the Second Judicial CircuitSouth Dakota Supreme Court · 1933
3 more not listed; retrieve them via the Exa API.