
    STONE, Administrator, et al., Respondents, v. LEAVITT, Appellant.
    (168 N. W. 28.)
    (File No. 4259.
    Opinion filed June 11, 1918.)
    1. Foreclosure — Realty Sale Contract Assigned' as Security, Completed Payments by Assignee, Deed Thereunder — Foreclosure by Assignee, Defense of Full Payment by Vendee — Right to Strict Foreclosure — Error.
    'Where one who held a realty purchase contract, assigned it as security for a debt owing to him to assignee, the latter having completed the, payments to vendor thereunder, held, in a suit by administrator and heirs of assignee against assignor and one who held a judgment against him which was a lien of record, to foreclose under the assigned contract the assignor defending on the ground that he had paid not only the deibt for which the contract was assigned as security, but had fully reimbursed for all payments required by the sale contract, that assignee had been in possession of the land and had failed to account for use thereof, and ¡praying judgment for a deed to him by defendants, or vesting title in defendant —that trial court erred in decreeing plaintiffs entitled to strict foreclosure; that the rights of assignee of the contract are measured 'by the contract between him and assignor, not by the contract of sale assigned by defendant; that had the assignee, instead of taking the assignment, taken a deed from vendor subject to the sale contract, and vendee had them defaulted in payments under such contract, then plaintiffs, under Laws 1913, Ch. 138, providing for ,foreclosure under defaulted executory contracts for sale or exchange of realty, would have been entitled to strict foreclosure; that said assignment was a mortgage, and when the assignee took a deed, he held same as security under the contract between him and vendee, who could not be deprived of his rights save by ordinary foreclosure.
    3. Evidence — Transaction With Deceased Person — Notes Paid by Assignee of Realty Sale Contract, Held and Offered by Assignor, as Evidence of Repayment, Whether Transaction With Decedent — Statute.
    In a suit by administrator and heirs of one who took an assignment of a contract of realty sale from vendee as security for a debt owing by latter to former, and who made full payment under said sale contract and received a deed to the land, for coreclosure under the sale contract, vendee defending on ground that he had fully paid the debt to secure which the assignment was made, and that he had fully reimbursed assignee for the land payments, held, that trial court erroneously excluded from evidence certain notes described in the land contract and paid by the assignee, which, notes were produced and offered in evidence by defendant as evidence of such repayments; that the notes weire not evidence relating to a transaction had or conversation with a deceased person, within the meaning of Laws 1913, Ch. 371, amending amended Sec. 486, 'Code Civ. Proc.
    S. Pleadings — Co-defendants—No Issue Raised, Jurisdiction to Adjudicate.
    In a suit for foreclosure by administrator and heirs, under a contract of realty sale assigned by defendant vendee to the decedent, held, that in absence of an issue raised between defendant and a co-defendant who held a judgment lien on the realty as against such vendee, trial court had no jurisdiction to adjudicate between them.
    Appeal from Circuit 'Court, Marshall County. Hon. Thomas L. Bouck, Judge.
    Action by Bad L. 'Sltooe, administrator of the estate of Will G. Boyd, and others as heirs, against A. E. Leavitt amid another, for foreclosure umidler a contract :of sale of realty. From a judgment for plaintiffs, 'and from an order denying- a new trial, defendant Leaivlitt appeals.
    Reversed.
    
      Frank McNulty, for Appellant.
    
      Potter & Potter, amid Anderson & Waddel, for Respondents.
    (1) To point one of the opinioim, Appellant cited': Sec. 55, Oha/p. 2, Title 14, Civ. Code; Art. 2, Chap-. 28 of Part 1, Code Civ. Phoic.; Sec. 673, Cade Civ. Proc.; Speagler v. Hahn, 95 Wis. 472, 70 N. W. 466; Yankton B. & L. Asso. v. Dowling, 10 S. D. 535, 74 N1. W. 436; Shimerda v. Wohlford, 13 S. D. 155, 86 N. W. 6343 27 Cyic. 1648; Moulton v. Qoirmish, 138 N. Y. 133, 33 N. E. 842, 20 L. R. A. 370 and note.
    Respondents cited: Law-s 1913, Ch. 138.
    (2) Under point two of the opinion, Appellant submitted that: Wh’dther these notes were in Leavitt’s possession, and produced by him did not relate to. a transaction had with deceased. Leavitt’s possesion of the notes was .an independent fact entirely divorced from tire manner in which be obtained possession; and cited: 3 R. C. L. 1286, Sec. 518; 12 Erne, of Ew. 895; Pritchard v. Pritchard, 69 Wiis. 373, 32 N. W. 506; In re Havltmeyer Estate, 39 N. Y. Sup, 550.
   WHITING, P. J.

Defendant R. entered! into a written contraict under which1 he contracted to purchase certain land, agreeing to pay a certain amount 'each year for several years, such payments ¡being evidenced1 by promissory motes executed by R. Alter paying -the first note B. assigned the said contract and his interests thereunder to one B'oyd. Such assignment w'as in writing, and it1 assigned sutli contract and B.’s rights thereunder as security for certain indebtedness owing from B. to. Boyd. Boyd made the payments called for by the contract, and received a dleed to the land. Defendant H. held a judgment against B., which judgment' was iof record in the county- where the land was stitu'ated. Alleging that B- had failed to pay the debits secured by the as-sigumenit of the land! Contract and the money paid! by Boyd in carrying out the terms of said contract, plaintiffs, as administrator and' heirs of Boyd, brought this action, seeking a strict foreclosure as1 against the defendants. B. answered, pleading payment in full of the debt for which the assignment was given, as well 'as1 .p'ayment to Boyd of the slum that had became due under the Contract with the land company. He alleged that Boyd! had heen in possession of is-aid land, and had' failed to account for the use thereof; and he prayed a judgment, requiring ithie plaintiffs' to execute to him a deed! to said .Dandi, or in lieu thereof that the court render such judgment as would1 vest the title of said' land! in him1, and that he recover such sum as ■the -dolur.t should find due him from asid- B'oyd because of the •possession .and use of said lands-. Findings-, 'conclusions, and judgmient ¡were entered, under which! it was determined that a ■certain balance w'as' due to . plaintiffs from B.; that plaintiffs were entitled to strict foreclosure; that H. had a lien against the land!, with the right of redemption from plaintiffs’ judgment; that, in ease H. redeemed, B., in order to redeem! -from him1, .-should pay the amlount paid by H. to! redeem, as well as the ■amount of the judgment held by H. From such judgment and .an order denying a new trial B. appeals.

Respondents question the sufficiency of the assignments of error, but we are of the opinion that the record herein is ample ■to - present all the question® ¡attempted to be raised by appellant ■under .his 'assignments; -and we are iolf the..opinion) that respondents have presented no questiOni of practice except such as has’ been heretofore dearly determined by the decisions of this court.

Appellant contends th'at the trial court (wrongfully decreed! a strict fore'clOisure herein. Ini s'uch contentó on appellant is clearly 'correct.. Boyd’s rights against L. are to be measured by the tíoínitr'aict between them), and not by the Oontraldt which L. assigned to Boyd. If Boyd1, instead of taking the assignment of the land contract, had1 taken a deed1 from the vendor subject to such land contract, and defendant L. had defaulted in his payments under such land contract, then plaintiffs, under chapter 138, Laws 1913, would' have been entitled to strict foreclosure; but •.plaintiffs’ rights rested entirely upon the terms o'f the •assignment 'from the vendee, which assignment was confessedly given as 'security, rendering sulch assignment nothing more nor les® than a mortgage. When Boyd took the deed to. his land he .held the same as security under the terms of the. contract 'between him and L., and L. Could not be deprived1 of his rights except by ordinary foreclosure. There was no more right of strict foreclosure then there would have been, if L., 'instead of holding a contract for the purchase oif said land, had held! the title to said laud 'and had conveyed saiidl land to Bbyd by a .conveyance in fortn a deed, but intended as a mortgage. Under such oircumstances plaintiffs’ nights would be those of a mortgagee, and could only be enforced by an ordinary foreclosure; -in which ■foreclosure proceedings they could recover the amlolunt of the debt remaining unpaid, together .with any sums which Boyd may have had to advance to' protect hiis 'title to the land from imcumheraniaas, taxes, etc., less moneys' received from, or the value of the use of, said1 land1. While this er-rioir of the trial court would require a modification olf the decree of ■ such trial colurt so. as to allow the ordinary redemption from 'foreclosure, yet it would not '-require a new trial.

There are, however, either errors that require .'this cause to be sent back for a new trial). As above noted, it wias the 'contention of appellant that he had 'not only paid the indlebteidhess; secured by the assignment to Boyd, but that he bad reimbursed' ■Boyd for moneys paid by Boyd under the land! contract. The Court found that appellant had paid the indebtedness described in -the assignment, but found that he had not rep-aid- the moneys paid 'by -Boyd ¡under the land conltra'ot. Appellant produced1 at the trial, and1 offered' in evidence several of the motes described in -the land contract, and 'which had 'been paid by Boyd to the vendor named 'in the land contract. This offer was ¡clearly ¡made in support of appellant's ¡allegations that he had ¡repaid Boyd for the -moneys .paid by Boyd! -on snob nietas. Respondents objected to- the receipt .of these exhibits-, “for ¡the reason that it is- in contravention and in opposition to ¡the statutes of the state of South Dakota, prohibiting the introduction of any -evidence by the defendant relating to ¡a transaction had ¡or a ¡conversation- ¡with a ¡deceased (person), this ¡being ¡an effort to prove 'by this witness, -the defendant, ¡that thes-e notes were paid -by biro to W. G. Bo-yd and therefore -the notes are incompetent, being prohibited' by the statutes above -referred to.” This1 objection wa-s sustained) and the exhibits excluded, apparently upon the theory that this was ¡evidence (off ¡a ¡transaction between appellant and’ Boyd, since dleceased'. The ruling of the ¡trial court was ¡clearly erroneous. 'Certainly if appellant had made any payments to B-oyd .and Bo-yd1 had delivered to him a relceipt ¡duly signed by him, there -is nothing in the statutes that (would forbid appellant testifying to the handwriting and putting into evidence such receipt. The statute in ¡question (chapter 371, Laws 1913) is not directed against or ¡intended !tó exclude any such -evidence. It -was clearly competent for appellant to offer testimony showing that -he had these notes in his possession, provided the -possession of such notes was any evidence that he had! repaid! to Bioyd the indebtedness evidenced thereby. We are of the opinion that the'possession of such notes was evidence competent to -be -considered by the court in Support of appellant’s (claim that he ’had repaid the advancements made by Bioyidí ion the land contract. 3 R. C. L. p. 1286, § 518. This is especially trite because there was some other evidence tending to show that appellant had: turned over to¡ Boyd some horses tin at le-astb part payment of what he owed B'oyd om account of Ms transaction.

-Under the pleadings there was no issue raised as between- defendants' L. ¡and H., and the trial court had no jurisdiction to adjudicate as between L. and H.

The judgment and order appealed! from are reversed-.  