4 S.D. 409 | S.D. | 1893
This is an action in conversion, wherein the plaintiff and respondent demands judgment against the appellant for the value of a certain amount of wheat which it is claimed was converted by it wrongfully and unlawfully. In the court below the respondent obtained judgment for the value of the wheat claimed to have been converted. From this judgment and the whole of it, the appellant appeals, and asks a reversal, because — First. That the chattel mortgage under which the respondent claims the right to the value of the wheat converted had been at the commencement of the action foreclosed, and all the property mentioned in the mortgage, except the wheat in question, had been sold in such foreclosure proceedings. Second. Because the chattel mortgage under which the respondent claims the wheat is not a valid one, it not having been signed by the mortgagor in the presence of two'witnesses, as required by the statute. Third. Because, before respondent can recover, it must show some wrongful and unlawful act on the part of appellant.
As to the first proposition, we are cited by the appellant to Section 4374, Comp. Laws, to support it, which reads as fol
But the appellant insists that it was a purchaser of the wheat in good faith, without notice, and for value. The appellant does not deny that the respondent’s chattel mortgage was filed in the office of the register of deeds, but only claims that the mortgage as filed was not a notice to them of any prior lien upon the wheat purchased by them of the mortgagor, because, on the face of the mortgage thus filed, it does not show that
The appellant further contends that the burden of proof is upon the respondent to prove that the sale of the wheat in question to appellant was made by the mortgagor to appellant without the consent of the mortgagee. If this proposition were true it would be requiring of him to prove a negative. But it is not so. This is matter to be shown by appellant in justification of the taking. Having puschased property upon which existed a mortgage lien, the appellant, in order to justify the purchase, must show that that lien had been extinguished or discharged. Finding no error in the ruling of the court below, its judgment must be affirmed.