Title 21 — JUDICIAL REMEDIES

The summons must be served in the manner prescribed for service of summons in actions to determine adverse claims to real estate, and when the summons is served by publication, it must contain a description of the property. Source: CCivP 1877, § 553; CL 1887, § 5367; RCCivP 1903,…

When the proceeds of the sale of any share or parcel belonging to persons who are parties to the action, and who are known, are paid into court, the action may be continued as between such parties, for the determination of their respective claims thereto, which must be ascertaine…

The proceeds of the sale of encumbered property must be applied under the direction of the court as follows: (1) To pay its just proportion of the general costs of the action; (2) To pay the costs of the reference; (3) To satisfy and cancel of record the several liens in their or…

Whenever any party to an action who holds a lien upon the property or any part thereof, has other securities for the payment of the amount of such lien, the court may, in its discretion, order such security to be exhausted before distribution of the proceeds of sale, or may order…

The person entitled to a tenancy for life or years, whose estate has been sold, is entitled to receive such sum as may be deemed a reasonable satisfaction for such estate, and which the person so entitled may consent to accept instead thereof, by an instrument in writing, filed w…

In all cases of sales, where it appears that any person has a vested or contingent future right or estate in any of the property sold, the court must ascertain and settle the proportionate value of such contingent or vested right or estate, and must direct such proportion of the …

When there are proceeds of a sale belonging to an unknown owner, or to a person without the state who has no legal representative within it, the same must be invested in bonds of the United States for the benefit of the persons entitled thereto. Source: CCivP 1877, § 584; CL 1887…

The clerk of courts, in whose name a security is taken, or by whom an investment is made, and his successor in office, must receive the interest and principal as it becomes due, and apply and invest the same as the court may direct; and must deposit with the county treasurer all …

The interests of all persons in the property, whether such persons be known or unknown, must be set forth in the complaint specifically and particularly, as far as known to the plaintiff; and if one or more of the parties, or the share or quantity of interest of any of the partie…

Immediately after filing the complaint in the circuit court, the plaintiff must record in the office of the register of deeds of the county or of the several counties in which the property is situated, a notice of the pendency of the action, containing the names of the parties, s…

If it appears to the court by the certificate of the register of deeds or clerk of courts, or by the verified statement of any person who may have examined or searched the records, that there are outstanding liens or encumbrances of record upon such real property, or any part or …

The plaintiff must cause a notice to be served, a reasonable time previous to the day for appearance before the referee appointed on each person having outstanding liens of record, who is not a party to the action, to appear before the referee at a specified time and place, to ma…

When several persons hold and are in possession of personal property as partners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance or for life or lives or for years, an action may be brought by one or more of such persons for a parti…

The venue of such action shall be the county in which such property or a part thereof is located. Source: SL 1953, ch 208 , § 2; SDC Supp 1960, § 37.14A01.

The procedure to be followed shall be the same as provided in chapter 21-45 , for the partition of real estate. Source: SL 1953, ch 208 , § 3; SDC Supp 1960, § 37.14A02.

Where real and personal property are owned by the same persons in substantially like interests, the court, in its discretion, may permit the consolidation of the personal property action established by this chapter with the real property action established by chapter 21-45 to be …

Actions for the foreclosure or satisfaction of mortgages may be brought in the circuit court for the county where the mortgaged real property or some portion thereof is situated, and in case any defendant be not a resident of the county, process may be served on him in any other …

If any time before sale, the defendant shall bring into court the principal and interest due, with costs, the proceedings in the foreclosure action shall be stayed until a further default, and in case of a subsequent default in the judgment of any of the installments, or any part…

If it shall appear that the mortgaged premises can be sold in parcels without injury to the interests of the parties, the decree must direct so much of the mortgaged premises to be sold as will be sufficient to pay the amount then due on such mortgage, with costs, and such judgme…

If, in any of the foregoing cases, it shall appear to the court that the mortgaged premises are so situated that a sale of the whole will be most beneficial to the parties, the judgment or decree must, in the first instance, be entered for the sale of the whole premises according…

Whenever an action shall be brought for the foreclosure or satisfaction of a mortgage, the court shall have power to render a judgment against the mortgagor for the amount of the mortgage debt due at the time of the rendition of such judgment, and the costs of the action, and to …

All sales of mortgaged premises under an order and decree of foreclosure must be made by a referee, sheriff, or his deputy, of the county where the court in which the judgment is rendered is held, or other person appointed by the court for that purpose, and must be made in the co…

In any foreclosure of a mortgage upon real estate by action, the holder of the mortgage may purchase the mortgaged premises, or any part thereof, at such foreclosure sale, if the holder of the mortgage bids fairly and in good faith, and bids the fair and reasonable value thereof,…

If the holder of such mortgage is not willing at such sale to bid the full amount of the judgment debt, such mortgage holder shall establish at the time of the trial by competent proof to the satisfaction of the court, the fair and reasonable value of the mortgaged premises, and …

Except as provided by § 21-47-16 , a foreclosure by action of a mortgage upon real estate operates as a complete extinguishment, satisfaction and payment of the debt secured by the mortgage. However, a foreclosure may not be considered to be satisfaction of an assignment of rents…

It shall be the duty of every officer or person who conducts any such sale to apply the proceeds as follows: (1) To the payment of the costs and expenses of the sale; (2) To the payment of the costs and disbursements taxed in the action in which the sale is made; (3) To the disch…

When the proceeds of sale are sufficient to pay the costs and disbursements and the entire debt adjudged to be due, the officer or person making the sale, or the clerk of the court, shall cancel the note, bond, mortgage, or other evidences of the debt upon which the judgment is f…

If the defendant be a nonresident of the state, or absent or concealed or if he be a resident of the state and after due diligence cannot be found in the state, service may be made by publication in the manner prescribed by statute or rule of court in ordinary civil actions but n…

Subject to the provisions of §§ 21-47-15 to 21-47-17 , inclusive, the court may direct the issuing of an execution for the balance that may remain unsatisfied, after applying the proceeds of such sale. Source: CCivP 1877, § 617; CL 1887, § 5431; RCCivP 1903, § 656; RC 1919, § 289…

Whenever any real property shall be sold under an order, decree, or judgment of foreclosure, under the provisions of this chapter, the officer or other person making the sale must give to the purchaser a certificate of sale, as provided in the statutes relating to foreclosure of …

All certificates of mortgage foreclosure sale of real property by action recorded prior to January 1, 1992, and the records of such certificates, are hereby legalized, cured, and validated, and such certificates and the record thereof are made and declared to be in every manner a…

The redemption of real property sold upon foreclosure of mortgages by order, judgment, or decree of court shall be as provided by statute relating to redemption from mortgage foreclosure sales by advertisement and sale under power of sale. Source: CCivP 1877, § 633; CL 1887, § 54…

At the expiration of the time for the redemption of such mortgaged premises, if the same is not redeemed, the person or officer making the sale, or his successor in office, or other person appointed by the court, must make to the purchaser or purchasers, their heirs or assigns, o…

Notwithstanding anything in §§ 15-19-17.1 , 21-47-24 and 21-48-21 to the contrary, the lien priority of a secured party in crops shall be determined by the provisions of Title 57A. Source: SL 1986, ch 177 , § 4.

All mortgage foreclosure sales of real property by action, under power of sale contained in such mortgages, made before January 1, 1992, the sheriff's deed thereof having been executed and delivered to the purchaser of such real property before January 1, 1992, notwithstanding an…

If the mortgage debt be secured by the obligation, or other evidence of debt, of any other person than the mortgagor, the plaintiff may make such other person a party to the action, and the court may render judgment for the balance of such debt remaining unsatisfied, after a sale…

In an action for the foreclosure or satisfaction of a mortgage, the complaint shall state whether any proceedings have been had at law or otherwise for the recovery of the debt secured by such mortgage or any part thereof; and if there has, whether any and what part thereof has b…

If it appear that any judgment has been obtained in an action at law for the moneys demanded by such complaint, or any part thereof, no proceedings shall be had in such case unless an execution against the property of the defendant in such judgment has been issued, and the sherif…

After action for foreclosure shall be commenced, while the same is pending, no proceedings at law shall be had for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court. Source: CCivP 1877, § 618; CL 1887, § 5432; RCCivP 1903, § 657…

The court may by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the existence of a lien or foreclosure of a mortgage thereon, and until the expiration of the time allowed for redemption. Source: CCivP 187…

Whenever an action shall be commenced for the foreclosure of a mortgage upon which there shall be due any interest or any portion or installment of the principal, and there shall be other portions or installments to become due subsequently, the complaint shall be dismissed upon t…

If the defendant shall not bring into court the amount due, with costs, or if, for any other cause, a judgment or decree shall be entered for the plaintiff, the court may appoint a referee to ascertain and report the situation of the mortgaged premises, or may determine the same …

Every mortgage of real property containing therein a power of sale, upon default being made in the conditions of said mortgage, may be foreclosed by advertisement. Source: CCivP 1877, § 597; SL 1883, ch 61 , § 1; CL 1887, § 5411; RCCivP 1903, § 636; RC 1919, § 2876; SL 1927, ch 1…

A sale under this chapter must be at public auction between the hours of nine o'clock in the forenoon and five o'clock in the afternoon on that day, in the county in which the premises to be sold, or some part thereof, are situated, and must be made by the sheriff of such county,…

Such sale may be postponed, from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publication until the time to which such sale shall be postponed, at the expe…

If the mortgaged premises consist of distinct farms, tracts, or lots, they must be sold separately, unless the same consist of platted lots having a structure partly upon each, in which case the lots must be sold as one tract; provided that whenever there be a paramount lien upon…

The mortgagee, his assigns, or their legal representatives, may, fairly and in good faith, purchase the premises so advertised, or any part thereof, at such sale. Source: CCivP 1877, § 605; CL 1887, § 5419; RCCivP 1903, § 644; RC 1919, § 2884; SDC 1939 & Supp 1960, § 37.3005.

The party foreclosing a mortgage by advertisement shall be entitled to his costs and disbursements, including any attorney fees allowed by law, out of the proceeds of the sale. Source: CCivP 1877, § 615; SL 1887, ch 28 , § 1; CL 1887, § 5429; RCCivP 1903, § 654; RC 1919, § 2895; …

It shall be the duty of every officer who conducts any such sale to apply the proceeds thereof as provided in § 21-47-18 , except that the surplus, if any, shall be paid to the clerk of the circuit court and he shall give his receipt therefor. The sheriff shall forthwith give not…

If such surplus, or any part thereof, shall remain with the clerk of said court for a term of three months without the rights thereto being fully determined, the clerk may deposit the same in some bank in said county and take an interest - bearing certificate of deposit therefor,…