18 S.D. 505 | S.D. | 1904
This is an action in claim and delivery to recover the possession of certain live stock alleged to be in the possession of the defendants. Findings and judgment being in favor of the defendant S. Josie Hill, the plaintiff has appealed to this court.
In 189i one Doty and the defendant Greene were' in possession of a ranch, irrigating ditch, and certain live stock in Pennington county. In March, 1896, Doty conveyed h'is interest in the real property to one David Hill, the husband of the respondent, and the defendant Greene. On March 16, 1896, a contract was entered into between the said Hill, party' of the first part, and said Greene, party of the second part, in which, it was agreed that the said Hill should sell to the said Greene, and the said Greene should purchase, an undivided one-third interest in the rach property above referred to, and also an undivided one-third interest in and to “all the farming tools, implements, wagons, buggies and live stock, of every name, nature and description, now and hereafter to be kept and placed thereon including the increase of live stock for the sum of $5,000, payable in lawful money oi the United States, in improvements already and hereinafter to be made” by the said Greene upon the premises above described, and ‘ ‘in live stock already and hereinafter to be delivered” to the said Hill, “at a costand price 1o be mutually agreed upon by. the parties” thereto, which said money, improvements already made,- and to be made, and the live stock already and thereinafter to be delivered, shall-aggregate the sum of $5,000, “from time to time in money, improvements and live stock, on or before the first' day of November, 1900, which said payments of money, improvements and live stock as made from time to time shall be endorsed
It appears from the evidence that Greene had charge of the ranch, and had purchased a large number of pure-bred animals, prior to March, 1896, taking the title and registering the same in his own name, and that he continued to transact the business in the same manner after the said date, and from time to time disposed of portions of said stock, made mortgages ■ and transfers in his own name, hired and discharged the men upon the ranch paying out over $25,000 by checks drawn in his name, and practically conducted all the business on the ranch, so far as the live stock was concerned, up to the time of the death of Hill, in March, 1900. And during the time that he was so conducting the business he executed a mortgage upon the said stock to the First National Bank of Rapid City for the sum of $800, which was subsequently, at the request of the said Greene, taken up by the plaintiff, who also loaned to the said Greene $600, for which he executed a note and mortgage upon said live stock. It is to rebover the property so 'mortgaged to the bank and herself that this action was instituted.
Before proceeding to discuss the merits of the case, there is a preliminary question to be considered. It is contended by the respondent that there are no such specifications in the bill of exceptions as are required by the Code. This contention is clearly untenable. The plaintiff not only proposed findings of fact, in which the whole theory of her case was presented, but she set'out particularly wherein the evidence is insufficient to support the findings, as appears from the following specification: “That ever since the year 1894 the defendant Daniel W. Greene has had a property interest in the Doty Ranch and the personal property herein described, including the original stock from which the' mortgaged property in controversy sprung. * * ' * That from the date of said contract until the month of June, 1900, the defendant Daniel W. Greene was the actual and sole manager of all the personal property belonging to said Hill & Greene. That said Greene paid the taxes thereon, employed and discharged the foreman and laborers who did the work, bought cattle in his own name from funds furnished by Hill and himself, and placed same upon said ranch, and took title thereto in his own name. That he bred, classified, registered, bought.
This brings us to the merits of the case.
It will be noticed that the first contract entered into between the said Hill and Greene contained some peculiar and ambiguous provisions. It will be observed that an undivided one-third interest in the property was to be conveyed to Greene upon the payment specified, which shall aggregate the sum of $5,000. It will be seen from this stipulation that improvements had already been made by Greene, and live stock already delivered by him, at the time the agreement was entered into. The second agreement was also somewhat ambiguous, and it is only by understanding the situation o£ the parties at the time the agreements were entered into that a fair and reasonable construction can be given to them. And after a very full consideration of the evidence and the peculiar circumstances sur
The principal witness on the part of the plaintiff was the defendant Greene, and, in order that we may understand and properly consider the construction to be given the contracts, it will be necessary to give the more material parts of his evidence in this opinion. Mr. Greene, in his deposition, testified as follows: “I reside at Washington, D. C. My occupation is, and has been for the Iasi five or six years, examiner of pensions. 1 am one of the defendants in this action. Since 1894 I have been continuously interested in the Doty Ranch. I first purchased an interest in it about 1894, when Mr. Doty and myself made improvements and conducted the affairs of the ranch about a year, when Captain Hill came West, and became a third partner. A year or two later Hill & Greene purchased the Doty intei’est, and we continued to run the entire property until the death of Captain Hill. * * * There was a clearly stated and agreed upon duty in regard to the management of the ranch and stock, under Captain Hill’s personal suggestion, and by his approval, for both he and myself to perform. This was recognized and lived up to by both of us, and neither of us attempted to interfere with the duties of the other. * * * At the time of the transfer from Mr. Doty to Hill & Greene, the personal property was conveyed to me, and the real estate to Captain Hill. This was by mutual agreement, to enable me, as the one in charge, to more easily buy, sell, register, and breed the live stock intelligently. It was not desired by either of us to conflict with the other’s duties. I had personal charge of
The evidence of Mr. Greene is practically undisputed, and very much of it is corroborated by the checks, mortgages, notes, vouchers, and records introduced in evidence in the case, and it was practically conceded that all of the stock was purchased and registered in the name of Greene. It would seem, therefore, that at the time that Hill and Greene entered into the contract on March 16, 1896, Greene was the owner of a.portion of the ranch, and a part, if not all, of the pure-bred stock then on the ranch, and that Hill & Greene together purchased Doty’s interest, giving him in part payment a mortgage for $7,000. It will thus be seen that Greene was not only interested in the ranch and in the live stock, but was clothed with the legal title to the same; and, being clothed with indicia of ownership and in possession, he had such an interest as authorized him to mortgage the same for the benefit of the parties, notwithstanding the contract on which the defendant Mrs. Hill relies. Construing the contract, therefore, in the light of the surrounding circumstances and conditions existing at the time it was executed, and the conduct of the parties subsequently to its execution, it does not support the contention of the defendant, Mrs. Hill, in her claim that Greene had no interest in the property, for the reason that Hill had never conveyed to him
“We, David Hill, and D. W. Greene, being first duly sworn' severally on oath depose and say that we are the mortgagors described in the within mortgage, payable to John W. Simpson, of No. 10 Wall Street, New York City, in the state of New York, the mortgagee named. We further state that we are the owners of all the property described in the within mortgage, and that we have not bargained, sold, or mortgaged said property, or any part thereof to any one; and that each and every item described in .the within mortgage is clear and free from all incumbrances. [Signed] David Hill, D. W. Greene.
“Subscribed and sworn to before me this 10th day oí Aug., 1898. [Signed] H. W. Somers, Notary Public. [Notarial Seal.]”
This view is further strengthened by the fact that in March, 1900, Greene disposed of four head of registered stock for the sum of §600, paid by the plaintiff in this action at about the time of the execution of the $600 mortgage; and that the same was delivered from the ranch to the husband of the plaintiff in the presence of Mrs. Hill, her brother-, and a son of the
If properly admitted, it was conclusive against the plaintiff, and the rule cannot, therefore, be invoked that the court, in its final decision, is presumed to have disregarded the incompetent evidence, but the case would come within the rule laid down in the case of Starkweather v. Bell, 12 S. D. 146, 80 N. W. 188. It is difficult to discover upon what theory the learned circuit court admitted this record in evidence.
The conclusion at which the court has arrived renders a reversal of the j udgment necessary, and the ordering of a new trial. There are numerous other questions discussed in the briefs of counsel, but, as they may not arise upon another trial, we do not deem it necessary to discuss them in this opinion.