9 S.D. 483 | S.D. | 1897
To recover immediate possession of certain stacks of wheat and oats for the purpose of foreclosing a chattel mortgage thereon, for the reason that plaintiff deemed himself insecure, this action in claim and delivery was brought against a sheriff, who justified the seizure and sale thereof under an execution based upon a judgment existing against the mortgagor, I. N. Griffith, in favor of A. H. Wait for $207.41. The case was sent to a referee, upon whose findings of fact and conclusions of law the court entered judgment against the defendant in plaintiff’s favor for a return of the property or for $795, the value thereof, in case a delivery could not be made. This appeal is by the defendant from said judgment, and from an order made after the entry thereof, overruling a motion for a new trial. Upon the ground that the following paragraphs of the answer constitute no defense to the action, a demurrer was interposed and sustained. Defendant “alleges that, if plaintiff had a valid chattel mortgage, as alleged in the complaint, it covered a large amount of personal property not mentioned in the complaint, which property was, at the time of the alleged attempt of foreclosure, in the possession of the said I.
Counsel for appellant urged at the trial and here maintain that the following description of the property in controversy contained in the chattel mortgage, is fatally defective: “All the crops of 1891 to be raised upon the N. E. 4, Sec. 6, Tp. 102, R. 48, consisting of 90 acres.” The maxims of jurisprudence “that all is certain which can be made certain,” and that “an interpretation which gives effect is preferred to one which makes void,” have been made statutory canons of construction by which to determine the validity of the instrument before us. Comp. Laws, §§ 4725, 4728. As the rule in reference to a description of personal property, in a chattel mortgage is less rigid than that applicable to a real estate transaction, cases involving descriptions of premises conveyed by tax deed, though instructive, are not controlling. It cannot be claimed that the grain described in the mortgage was not in fact that which was seized and sold by appellant under the execution; and, in the absence of anything misleading or deceptive about the description of the land upon which said crops were grown, we are disposed to regard the recital under consideration sufficient. That both parties to the mortgage understood the property hypothecated to be 90 acres of I. N. Griffith’s crops to be raised by him, in Minnehaha county, during the year 1891, on the N. E. i of section 6, township 102, range 48, and that said 90 acres included all the crops to be raised thereon during that year, is too plain to admit of any doubt; and the description is entirely sufficient to enable a third person, exercising reasonable care,
After introducing evidence to show the kind, number of bushels, and market value^ of the mortgaged grain, and to prove the net cash value of said property when levied upon in the stack, a witness who superintended the threshing and marketing thereof testified, merely on direct examination, that the expense thus incurred was $174.50. On cross-examination counsel for appellant offered to prove by this witness that at the execution sale of the grain, conducted by appellant as sheriff, the mortgagor purchased the same; and the court’s ruling in sustaining an objection upon the ground that such evidence was incompetent, irrelevant, immaterial, and not proper cross-examination is assigned as error. Although it seems, from a cursory examination, that the subject of inquiry was neither-related to, nor in any manner connected with, the fact stated on direct examination, nor material to or within the issues raised by the pleadings, the question presented need not be decided, as it clearly appears from the undisputed testimony of this witness, elicited by appellant’s further cross-examination, that the mortgagor did not purchase the grain at sheriff’s sale, or at all, but that the same was sold for $270, regulary, and without fraud or collusion, to the highest bidder; and that Griffith, the mortgagor, was thereafter employed to perform certain labor in caring for and in protecting the stacks, and in hauling the grain to market, for which services he was paid by the witness $103. The referee found the value of the grain in the stacks at the time of the seizure to be $700, and, as the e.vidence amply
Although it appears that the aggregate consideration for the note made payable to H. L. Greene, to secure which the chattel mortgage was executed, consisted wholly of sums due from the mortgagor to respondent, and that said note was thus taken at the instance of respondent, to whom it was indorsed by Greene without recourse, the evidence fairly within the issues raised by the pleadings shows a sufficient delivery of said note; and respondent, as the real party in interest, can maintain this action against appellant, who alleges nothing that that would constitute a defense to the action, were the note and mortgage still in the hands of the assignor. Comp. Laws, §§ 4870, 4872; Morris v. Morton, (Neb.) 15 N. W. 725; Cottle v. Cole, 20 Iowa 481; McWilliams v. Bridges, 7 Neb. 419. Finding no error in the record, the judgment appealed from is affirmed.