C. Aultman & Co. v. Siglinger

Corson, J. This is an appeal from an order overruling the demurrer to the complaint. The complaint is, in substance, as follows: (1) That the plaintiff is a corporation, organized under the laws of the State of Ohio, and authorized to transact business, sue and be sued, in the State of South Dakota, having complied with all the requirements of the statutes of said state in regard to foreign corporations; (2) that thte defendant — 445 — is the duly elected, qualified, and acting sheriff of Day county, and acted as such sheriff at the time of all the acts herein alleged as being done by him; (3) that, acting as such sheriff, and pursuant to a notice of foreclosure, the defendant, on the date mentioned, sold, at the front door of the court house in Day county, the lands in question, which are specifically described in the complaint, for the sum of $700, and delivered to the purchaser a certificate of such sale; (4) that after making the sale, the defendant made and executed an affidavit, purporting to show the amount received by him from the purchaser at the foreclosure sale, and that, according to that.affidavit, there remained in his hands a surplus of the proceeds of the sale of $160.27, after paying the amount of the mortgage and costs and disbursements necessarily incurred in making the same; (5) that subsequent to the execution of the mortgage upon which the foreclosure was made, and following next in the regular order of assignment, the mortgagor had mortgaged the land to the plaintiff, C. Aultman & Co., to secure the payment of $1,500; that this mortgage was for value, without fraud, and duly recorded in the office of the register of deeds of Day county, and remains in full force, and that, by virtue thereof, the plaintiff was the lawful assignee of the equity of redemption by the mortgagor, and entitled to receive the surplus of the proceeds of the foreclosure sale; and (6) that demand therefor had been made on the defendant, and that he refused, and still refuses to pay over or account for the surplus. The defendant demurred to the complaint, on the ground that it does nob state facts sufficient to constitute a cause of action; and the counsel for appellant specify several omissions of allegations in the complaint which they claim render the complaint insufficient, among which are the following: That there is no allegation in the complaint that there was any mortgage or power of sale, under and by virtue of which the alleged sale was made; that there is no allegation that defendant received $700, or any other sum on the sale, that there is no allegation that defendant had in his hands the sum of $160.29, or any other .sum, as surplus, after paying the amount due upon the prior mortgage — 446 — including principal, costs, charges, and expenses of sale. Annexed to the complaint, and made a part thereof, are a number of exhibits set out in full, being the notice of sale, certificate of sale, affidavit of the defendant, and the mortgage of plaintiff. In determining the sufficiency of the complaint the averment therein can alone be considered. A complaint which does not state a cause of action by its averments, without reference to its exhibits, is bad upon demurrer. Bowling v. McFarland, 38 Mo. 465; Baker v. Berry, 37 Mo. 306; Curry v. Lackey, 35 Mo. 392; Taylor v. Blake, 11 Minn. 255, (Gil. 170,) Mayor v. Signoret, 50 Cal. 298; Larimore v. Wells, 29 Ohio St. 13. The exhibits, therefore, will not be considered in determining the sufficiency of the complaint in this case. Section 4907, Comp. Laws, provides that the complaint shall contain “a plain and concise statement of the facts constituting a cause of action;’’ and Section 4924 provides that, “in-the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.” While, therefore, under our system of pleading, no particular form for the statement of a cause of action is prescribed, and nothing further is required than that the facts constituting the cause of action shall be concisely stated, which pleading shall be liberally construed with a view to substantial justice between the parties, yet the facts corstituting the cause of action must be stated in the complaint with sufficient clearness and fullness to enable the court to see that, upon the facts stated, the plaintiff is entitled to the relief demanded, or at least some relief. A court cannot be called upon to supply facts by inference or conjecture. The facts themselves must be stated, — not by way of recital, or by a statement of probative facts, but by direct allegations of the ultimate facts relied on to sustain the action. The complaint in this action is based upon Section 5424, Comp. Laws. This section is found in Chapter 28, Code of Civil Proc. providing for the foreclosure of mortgages by advertisement The first section of the chapter (Section 5411, Comp. Laws) provides that ‘ ‘every mortgage of real property containing therein — 447 — a power of sale, upon default being made in the condition of such mortgage, may be foreclosed by advertisement in the cases and in-the manner hereinafter specified.” Then follow the sections providing for the cases in which such a foreclosure can be made, and the manner of making the same. Then follows Section 5424, which provides as follows: “If, after any such sale, there remains in the hands of the officer, or other person making the sale; any surplus money, after satisfying the mortgage on such real property sold, and payment of the costs and expenses of such foreclosure and sale, the surplus must be paid over by such officer, or other person, on demand, to the mortgagor, his legal representatives or assigns.” This being an action founded upon the.statute, the plaintiff, to entitle him to recover, must, we think, show by his complaint (1) that a mortgage was executed by the person or persons named, fully describing it and the property mortgaged, and that it contained a - power of sale; (2) that under and by virtue of said power of sale the defendant sold the property for a specified sum, which was paid to him; (3) the amount remaining in his hands, as surplus; (4) the mortgage of plaintiff, describing it fully, under which he claims the surplus; and, lastly, a demand and refusal. An examination of this complaint discloses the fact that several of the facts required to be stated are omitted- from this complaint. It will be observed that the complaint, after alleging the incorporation of the plaintiff, and the official character of the defendant, avers, in Paragraph 3, that the defendant, acting as such sheriff, and pursuant to a notice of foreclosure, sold the real estate described. There is no allegation of the existence of any mortgage containing a power of sale, or otherwise. No facts are stated from which a court would be authorized to conclude that any mortgage had been given under which a sale could have been made by the defendant. It is not the case of the imperfect or defective statement of a fact .which would be made more definite and certain on motion, and therefore admitted by the demurrer, but the omission of the statement of any facts relating to the existence of the mortgage containing a power of sale. To hold the averments of the com — 448 — plaint good in this case would be to require the court to presume, from the allegation, that the defendant sold the property, but there was a subsisting mortgage, that it contained a power of sale, .and that the sheriff was authorized to sell. No court, we think, would be authorized to indulge in such presumptions as to facts that should be alleged. The learned counsel for respondent contends that the objections of appellant to the .complaint are met by the presumptions with which the sheriff’s official acts are clothed. But we do not think the court is required to presume that the sheriff was authorized to make the sale. When the authority to make the sale is shown, the court will presume that the sheriff performed his duty in making the sale. We are of the opinion, therefore, that the absence from the complaint of any facts pertaining to the mortgage under which the sale was made renders the complaint fatally defective. We are of the opinion, also, that there is no sufficient allegation in the complaint that defendant received $700 on the sale, or any other sum. It is alleged that he sold the property for $700, but it is nowhere alleged that it was paid. Again, there is no allegation that there was a surplus of $160.29, or any other sum, in the hands of the sheriff, arising from such sale. The averment is that defendant made “an affidavit purporting to show the amount received from the purchase; * * * that, according to said affidavit, there remained in the hands of said sheriff the sum of $160.29.’’ There is no direct averment that defendant had that sum as a surplus, and hence no issue could be raised upon the allegation, except an immaterial one as to whether or not defendant made such an affidavit, or whether or not, according to such affidavit, there remained in his hands the sum of $160.29. It is possible that, in support of a judgment after verdict, the last two objections to the complaint might, by a very liberal construction, be held good, but upon this demurrer we cannot so hold. It is safer for the pleader to state the ultimate facts directly, so that they can be admitted or denied by the defendant, and, if denied, a material issue presented by the pleadings. — 449 — The order overruling the demurrer is reversed, and the court below is directed to allow the plaintiff to amend its complaint as it may be advised. Bennett, J., concurring.