Title 44 — LIENS

A mortgage of real property can be created, renewed, or extended only by writing, executed with the formalities required in the case of a grant of real property. Source: CivC 1877, § 1722; CL 1887, § 4346; RCivC 1903, § 2042; RC 1919, § 1547; SDC 1939, § 39.0201.

Any interest in real property which is capable of being transferred may be mortgaged. Source: CivC 1877, § 1727, subdiv 1; CL 1887, § 4351, subdiv 1; RCivC 1903, § 2047, subdiv 1; RC 1919, § 1551 (1); SDC 1939, § 39.0207 (1); repealed SL 1966, ch 150 , § 10-102; re - enacted SL 1…

Title to real property acquired by the mortgagor subsequent to the execution of the mortgage inures to the mortgagee as security for the debt in like manner as if acquired before execution. Source: CivC 1877, § 1727, subdiv 2; CL 1887, § 4351, subdiv 2; RCivC 1903, § 2047, subdiv…

A real estate mortgage does not bind the mortgagor personally to perform the act for the performance of which it is a security unless there is an express covenant therein to that effect. Source: CivC 1877, § 1727, subdiv 3; CL 1887, § 4351, subdiv 3; RCivC 1903, § 2047, subdiv 3;…

The assignment of a debt secured by a real estate mortgage carries with it the security. Source: CivC 1877, § 1727, subdiv 4; CL 1887, § 4351, subdiv 4; RCivC 1903, § 2047, subdiv 4; RC 1919, § 1551 (4); SDC 1939, § 39.0207 (4); repealed SL 1966, ch 150 , § 10-102; re - enacted S…

No person whose interest is subject to the lien of a real estate mortgage may do any act which will substantially impair the mortgagee's security. Source: CivC 1877, § 1733; CL 1887, § 4358; RCivC 1903, § 2054; RC 1919, § 1558; SDC 1939, § 39.0207 (5); repealed SL 1966, ch 150 , …

The record of a mortgage, duly made, operates as notice to all subsequent purchasers and encumbrancers. Source: CivC 1877, § 1739; CL 1887, § 4369; RCivC 1903, § 2069; RC 1919, § 1573; SDC 1939, § 39.0305.

Every grant of real property, or of any estate therein, which appears, by any other writing, to be intended as a mortgage, must be recorded as a mortgage; and if such grant and other writing explanatory of its true character are not recorded together at the same time and place, t…

When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person other than the grantee, or his heirs, or devisees, or persons having actual…

An assignment of a mortgage on real property may be recorded in like manner as a mortgage when it is acknowledged or proved according to the statutes relating to proof of instruments for record and contains the name of the mortgagor, the mortgagee, the assignee and the assignee's…

A recorded mortgage may be discharged upon the records of a register of deeds by filing for record and causing to be recorded at length a certificate signed by the mortgagee or his successor in interest by succession, assignment, representation, or otherwise, acknowledged, or pro…

The record of any assignment or discharge of mortgage affecting real property, which was otherwise entitled to be recorded, and which, prior to January 1, 1992, was copied into the proper book of records kept in the office of any register of deeds, and which has been properly ind…

In case any installment of interest or principal upon any prior or superior mortgage shall become due and the mortgagor or his successor in interest shall fail to pay such interest or principal, the holder of any inferior mortgage on real estate may pay such interest or principal…

In all cases where real property has been heretofore, or shall be hereafter, sold on execution or in any mortgage foreclosure proceeding, the purchaser at such sale, or his successor or successors in interest, may during the year or years of redemption, in case of the expiration …

Payments pursuant to §§ 44-8-16 and 44-8-17 may be proved by a written notice thereof verified by the affidavit of the purchaser, his agent, or attorney, stating the items and describing the premises, which may be recorded in the office of the register of deeds, and a copy thereo…

In case any mortgagor, redemptioner, or judgment debtor, shall object to the payment of any such insurance premium, taxes, or prior liens on account of the incorrectness or invalidity thereof, he may file with the sheriff an indemnity bond, in an amount and with sureties to be ap…

A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged, proved, or certified and recorded in like manner as powers of attorney for grants of real property. Source: CivC 1877, § 1730; CL 1887, § 4355; RCivC 1903, § 2051; RC 1919, § 1555; SDC 1939, §…

No claim for any deficiency in the amount secured by any real estate mortgage given after June 30, 1933, to secure all or any part of the purchase price of such real estate shall exist after the foreclosure of such mortgage by action or advertisement, but such foreclosure shall b…

In all cases where a note given by the purchaser and grantee of real estate to the vendor and grantor thereof to secure payment of all or any part of the purchase price is secured by a mortgage on such real estate, such note shall bear an endorsement upon its face to the effect t…

Nothing contained in § 44-8-20 or 44-8-21 shall affect the rights of a payee or other owner of a note given in payment of all or part of the purchase price of real estate unless such note is secured by a real estate mortgage. Source: SL 1933, ch 138 , § 4; SL 1935, ch 150 , § 4; …

Nothing contained in § 44-8-20 or 44-8-21 shall affect the liabilities of the parties to a contract for sale of real estate prior to the time such contract is merged into a mortgage note and mortgage, and judgment for foreclosure or for the amount due under said contract or any o…

Nothing contained in § 44-8-20 or 44-8-21 shall apply to purchase money mortgages, or notes held by the United States of America, or any agent, agency, or instrumentality thereof, or any corporation or association whose obligations are guaranteed in whole or in part by the United…

Nothing contained in this chapter shall affect the rights or liabilities of a mortgagor or mortgagee under a mortgage given by a purchaser or grantee of real estate to a lender who is not the vendor or grantor of such real estate. Source: SL 1970, ch 250 .

A mortgage which contains the following statement in printed or typed capital letters: THE PARTIES AGREE THAT THIS MORTGAGE CONSTITUTES A COLLATERAL REAL ESTATE MORTGAGE PURSUANT TO SDCL 44-8-26 , is subject to the provisions of this section. A mortgage executed pursuant to this …

For the purpose of this section and § 44-8-28 , a due - on - sale clause is a provision of a real estate mortgage which requires that the note secured by the mortgage be paid at the time the property is transferred and no assumption of the original note is permitted. Source: SL 1…

No lender may enforce a due - on - sale clause unless the real estate mortgage includes such clause. Source: SL 1981, ch 311 , § 2.

Terms used in §§ 44-8-30 to 44-8-35 , inclusive, mean: (1) "Mortgage," a mortgage or mortgage lien on an interest in real property in this state given to secure a loan; (2) "Mortgagee," the grantee of a mortgage or, if a mortgage has been assigned of record, the last person to wh…

The standard form of real estate mortgages is as follows: MORTGAGE This mortgage, made this ________ day of ________ in the year 20____, by ________ of ________ county and state of ________ mortgagor, to ________ of ________ P. O., county of ________ and state of ________, mortga…

Any officer or duly appointed agent of a title insurance company may, on behalf of a mortgagor or a person who acquired from the mortgagor title to all or a part of the property described in a mortgage, execute a certificate of release that complies with the requirements of §§ 44…

A certificate of release executed under §§ 44-8-30 to 44-8-35 , inclusive, shall contain substantially all of the following: (1) The name of the mortgagor; the name of the original mortgagee; if applicable, the mortgage servicer; the date of the mortgage; the date of recording; a…

A certificate of release authorized by § 44-8-30 shall be executed and acknowledged as required by law in the case of a deed pursuant to § 43-25-5 and may be executed by a duly appointed agent of a title insurance company, but such delegation to an agent by a title insurance comp…

For purposes of releasing a mortgage, a certificate of release containing the information and statements provided for in § 44-8-31 and executed as provided in §§ 44-8-30 to 44-8-35 , inclusive, is prima facie evidence of the facts contained in it, shall be recorded with the count…

If the mortgage is recorded in more than one county and a certificate of release is recorded in one of them, a certified copy of the certificate of release may be recorded in another county with the same effect as the original. In all cases, the certificate of release shall be re…

Sections 44-8-30 to 44-8-35 , inclusive, apply only to a mortgage in the original principal amount of five hundred thousand dollars or less. Source: SL 1997, ch 251 , § 7.

The standard form of assignments of real estate mortgages is as follows: ASSIGNMENT OF MORTGAGE For and in consideration of ________ dollars, to ________ in hand paid, ________ do ________ hereby assign unto ________ of ________ P.O., a certain indenture of mortgage and the notes…

The standard form of satisfactions of real estate mortgages is as follows: SATISFACTION OF MORTGAGE ________ of ________ state of ________, hereby certifies, that a certain mortgage bearing date the ________ day of ________, 20__, executed by ________ to ________ of ________ upon…

Sections 44-8-3 to 44-8-5 , inclusive, do not preclude the use, affect the validity, or control the interpretation of other forms of real estate mortgages or assignments or satisfactions thereof; but all such instruments, whether on standard form or not, must show the name and po…

The following contracts between a mortgagor and mortgagee of real estate are against public policy and unenforceable: (1) In case of a mortgage upon the homestead of the mortgagor or adjacent property used in connection therewith and for the same purpose, any provision in such mo…

The recording of any mortgage or trust deed affecting real property which was otherwise entitled to be recorded and which prior to January 1, 1992, was copied into the proper book of records kept in the office of any register of deeds and which has been properly indexed in that o…

Mortgages of real property may be acknowledged or proved, certified, and recorded in like manner and with like effect as grants thereof. Source: CivC 1877, § 1738; CL 1887, § 4368; RCivC 1903, § 2065; RC 1919, § 1569; SDC 1939, § 39.0304.