Home Inv. Co. v. Clarson
South Dakota Supreme Court
Appeal from Circuit Court, Sanborn County. Hon. Frank B. Smith, Judge. Action by the Home Investment Company against George C. Clarson and the McCormick Harvesting Machine Company. Judgment in favor of plaintiff, and the latter defendant appeals. It was incumbent on the plaintiff not only to- allege but also to prove that it purchased the premises and caused the first mortgage to be released on account of a mistake of fact.
Read the full summary
Appeal from Circuit Court, Sanborn County. Hon. Frank B. Smith, Judge. Action by the Home Investment Company against George C. Clarson and the McCormick Harvesting Machine Company. Judgment in favor of plaintiff, and the latter defendant appeals. It was incumbent on the plaintiff not only to- allege but also to prove that it purchased the premises and caused the first mortgage to be released on account of a mistake of fact. This being the case, equity will not grant the relief prayed for .-in this action, and thus relieve the respondent from the consequences of its own -acts. Story on Equity…
1Opinion of the CourtHaney, J.
The facts constituting the plaintiff's alleged cause of action are set forth in the former decision of this court on appeal from an order overruling a demurrer to the complaint. Home Inv. Co. v. Clarson, 15 S. D. 513, 90 N. W. 153. They may be summarized thus: Defendant Clarson executed three real estate mortgages upon the same premises, each of which was recorded in the order of its execution. The second having been foreclosed by action, the premises were purchased by the plaintiff in this action, who in due time obtained a sheriff’s deed, and, supposing the rights of the defendant machine…
2Cases cited5 opinions
- Geib v. ReynoldsSupreme Court of Minnesota · 1886
- Bruse v. NelsonSupreme Court of Iowa · 1872
- Upton v. HugosSouth Dakota Supreme Court · 1895
- Ricker v. StottSouth Dakota Supreme Court · 1900
- Home Inv. Co. v. ClarsonSouth Dakota Supreme Court · 1902
3Cited by5 opinions
- Ross v. TaylorSouth Dakota Supreme Court · 1917
- Madson v. BallouSouth Dakota Supreme Court · 1935
- Bennett v. CampbellSouth Dakota Supreme Court · 1925
- Fransen v. StateSouth Dakota Supreme Court · 1932
- Luce v. AshSouth Dakota Supreme Court · 1911