Hodgdon v. Davis

Supreme Court Of The Territory Of Dakota

Decided February 15, 1888

Supreme Court Of The Territory Of Dakota · decided 1888-02-15

C. S. Palmer, Judge. This was an action by Alfred M. and Emily J. Hodgdon, plaintiffs, against L. E. Davis, defendant, to set aside a foreclosure sale, and in the event that relief was denied, for an accounting and a right to redeem. The case was determined below by the sustaining of a demurrer to the complaint..

Decided 1888-02-15

By the Court :

¶11. This was a contract by which the defendant, in effect, loaned the plaintiff $5,500 by assuming to pay a prior mortgage of $2,632.30 and paying the remainder to them in cash. The mere fact that he did not, and could not, immediately pay off the mortgage which bore a lower rate of interest, cannot be construed to make defendant’s contract usurious.

¶22. The sale at foreclosure by the deputy sheriff, while perhaps irregular in not using the name of his principal, was valid.

¶33. No further notice was necessary.

¶44. There was, under the terms of the mortgage, a breach of its conditions by a failure to pay interest as specified in the note.

The judgment is affirmed, all of the justices concurring.