South Dakota Mortgage Security Agreement and Promissory Note

This is a recordable mortgage that serves (as notice to all subsequent purchasers and encumbrancers.) (44-8-10) Included is a Power of Sale clause, considered more favorable to lenders because it uses a non-judicial foreclosure, saving time and expense. [In case of default in the payment of said principal sum of money or any part thereof, or interest thereon at the time or times above specified for payment thereof, or in case of nonpayment of any taxes, assessments, or insurance as aforesaid, or of breach of any covenant or agreement herein contained, then and in either case, the whole, principal and interest, of said note -- shall at the option of the holder thereof, immediately become due and payable, and this mortgage may be foreclosed by action, or by advertisement as provided by statute or the rules of practice relating thereto, and this paragraph shall be deemed as authorizing and constituting a power of sale as mentioned in said statutes or rules, and any amendatory thereof.] [44-8-3]

This mortgage contains a (due-on-sale clause) which (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.) (44-8-27). This is done because [No lender may enforce a due-on-sale clause unless the real estate mortgage includes such clause.] [44-8-28]

44-8-21. Mortgage securing note for purchase price of real estate--No negotiability--Enforcement of liability--Endorsement of note. 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 that it is given for such purpose, and thereafter the same shall not be negotiable, nor shall any liability of any kind be enforced upon it either by action at law, or by set-off, or counterclaim, or otherwise, excepting by foreclosure of the mortgage. The rights of any party to said note, or of any assignee, or purchaser thereof, shall not be affected by the absence of such endorsement but shall be the same as though such note had been properly endorsed. Nothing herein contained shall apply to such note given prior to July 1, 1933.

44-8-22. Rights of payee of note given in payment of purchase price--Deficiency judgment prohibition inapplicable unless note secured by real estate mortgage.

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.

A mortgage and promissory note secured, including stringent default terms can be beneficial to the lender. Use these forms for residential, commercial, rental property, condominiums, vacant land and planned unit developments.

(South Dakota Mortgage Package includes forms, guidelines, and completed examples) For use in South Dakota only.