Thurber v. Miller
South Dakota Supreme Court
Appeal from circuit court, Lawrence county. Hon. A. J. Plowman, Judge. • Action by Horace K. Thurber against Mary C. Miller and others to foreclose a mortgage. Prom a judgment for defendants, plaintiff appeals. The facts are stated in the opinion. The lower court should have found that appellant duly presented verified proof of his claim to the trustees and executors of the last will of James K. P. Miller and that the estate is therefore liable for deficiency on foreclosure.
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Appeal from circuit court, Lawrence county. Hon. A. J. Plowman, Judge. • Action by Horace K. Thurber against Mary C. Miller and others to foreclose a mortgage. Prom a judgment for defendants, plaintiff appeals. The facts are stated in the opinion. The lower court should have found that appellant duly presented verified proof of his claim to the trustees and executors of the last will of James K. P. Miller and that the estate is therefore liable for deficiency on foreclosure. Mining Co. v. Noonan 3 Dak. 109; Pitts Works v. Young 62 N. W. 432; Tandirup v. Hanson 66 N. W. 1074; 1 Rice Ev. p. 66;…
1Opinion of the CourtFuller, J.
Prior to the commencement of this action to foreclose a. mortgage for some $50,000 on a business block in the city of Deadwood, the insolvent morugagor, James K. P, Miller, died, testate. Shortly after the suit was instituted, the defendants Joseph Swift. E. B. Beecher, and William Swift, executors of the will, were removed and superseded by William Selbie, the duly appointed administrator of the estate with decedent’s last will annexed, who was thereupon by the court substituted in their stead as a party defendant. In addition to the usual hypothecating clause, the mortgage contains the…
2Cases cited1 opinion
- Thurber v. MillerCourt of Appeals for the Eighth Circuit · 1895
3Cited by4 opinions
- Bowman v. HazenSupreme Court of Kansas · 1904
- Matter of Estate of BachandSouth Dakota Supreme Court · 1981
- Thurber v. MillerSouth Dakota Supreme Court · 1901
- Massey v. FralishSouth Dakota Supreme Court · 1916