22 S.D. 638 | S.D. | 1909
This case comes before this court on an appeal from the judgment of the circuit court in favor of the plaintiff and from an order denying a new trial. The record is brief, and the facts are practically undisputed. It appears that one Bed-doe gave his promissory note to a bank, and that the plaintiff, Iver-son, signed said note as a surety. At the time of giving said note Beddoe gave to Iverson a chattel mortgage to secure Iverson’s liability as such surety. This mortgage covered crops to be grown in the season of 1904 on a certain quarter section of land in Min-nehaha county. Said mortgage and note' were dated March 19, 1904, and said mortgage was filed on March 19, 1904. At the time of giving said mortgage Beddoe had no lease on the land in question, and the said land was owned by a party by the name of Simpson; but upon April 4, 1904, Simpson by a written lease
Two questions are raised upon this appeal; one based upon the issue as to whether or not there was ever a division of this grain between the lessor and the lessee, and the other a pure question of law as to whether or not this mortgage given by a party, who at the time of giving the same neither owned or had a lease of the land, and which mortgage purported to cover crops not yet in existence, had any legal validity, at least as against third parties. The appellant contends that there was no competent evidence showing that these crops were ever divided, and further contends that until such division no title to the same vested in the mortgagor, and until title was vested in the mortgagor the mortgagee claiming under such mortgagor was not in a position to bring this action of conversion. We will first consider the question as to whether or not there was sufficient evidence to show a division of this grain, because, if there was, then the legal proposition contended for by appellant is material in this case. Certain evidence was received on behalf of the respondent, oyer appellant’s objection, touching the question of division; .this evidence being evidence relating to conversations between the lessor and the lessee wherein it is claimed by the respondent that the lessor directed -the lessee to make the division. And it (is further contended by the respondent that in ac
Under the authorities in other states which recognize the present tendency to uphold such mortgages, we find many cases where mortgages are upheld upon property not yet acquired by the mortgagor, as upon live stock, such as horses, cattle, sheep, etc., and these same courts would uphold a' mortgage given upon the offspring of cows, mares, and sheep, the mothers being owned by the mortgagor when the mortgage was given. We can see no reason why, if both of such classes of mortgages above referred to should be held good, a mortgage purporting to cover a mare not yet owned by the mortgagor, together with the increase thereof not yet born, should nolt be good, and we believe is was clearly the intent of our legislators in enacting section 2024 to cover such a case. The case at bar to our mind is exactly analogous. If a person owning a farm or having a lease thereof can, under, -this section, give a valid mortgage on crops to be grown thereon, and if another person not owning certain ground can give a mortgage ¡thereon which will be valid and effective when he acquires title ■thereto, then we see no reason why this section of the statute will not cover a case such as the one at bar] where the mortgagor mortgaged property not in existence, the source of the potential existence being vested in another person, and such mortgage be good if he acquires the source of the potential existence and the property afterwards comes into actual existence, the same as if
We are therefore of- the opinion that such mortgage was valid, and that there was no error in the rulings of the lower court upon the admission of testimony, and that the evidence was ample to sustain the verdict.
For these reasons the judgment appealed from, together with the order denying a new trial, are sustained.