13 S.D. 301 | S.D. | 1900
This is an appeal from an order granting a new trial. The action was brought by the plaintiff, as junior mortgagee of a stock of goods, to recover damages of the defendants who w7ere prior mortgagees of the same stock of goods, for an alleged unlawful conversion of the same. The verdict and judgment in the action were in favor of the defendants, and upon the plaintiff’s application a new trial was
Exhibit U, referred to in the order of the court, reads as follows:
“Sioux Palls, S. Dak., Oct. 6, 1894. W. H. Hawley, Esq., Sheriff Brookings county, S. Dak. — Dear Sir: We, the undersigned, attorneys for Tolerton & Stetson Co. and Mens Anderson Co., holders of mortgages on the stock of goods bought by May Farrell of Alonzo Emrick, and by her sold to C. H. Far-rel)xwhich stock of goods you have in your possession under two mortgages given by Alonzo Emrick to Tolerton & Stetson Co., and one mortgage given by May Farrell to Tolerton & Stetson Co., and one mortgage given by Alonzo Emrick to Mons Anderson Co., hereby consent that you sell said stock at auction or private sale, or both, as you see fit, and to appoint some suitable person a bailiff to take charge of the sale, and to continue
‘-I hereby consent to the foregoing. O. H. Farrell.”
The facts giving rise to this agreement may be briefly stated as follows: Alonzo Emrick was the owner of the stock of goods in controversy, at Egan, in the county of Moody. He mortgaged the goods to the defendants, and their mortgages were properly filed in the proper office in Moody county. Subsequently he mortgaged the same goods to the plaintiff, wftich mortgage was not filed until some time after its date. In the meantime Emrick sold the stock of goods to May Farrell, who immediately removed the same to Brookings county, and after-wards sold them to C. H. Farrell, who, without any knowledge actual or constructive, of the plaintiff’s mortgage, as was necessarily found by the verdict of the jury, entered into an agreement (Exhibit U). It may be assumed from the verdict of the jury that neither of the defendants had any actual or constructive notice of plaintiff’s mortgage at that time. Under that agreement the goods were sold, and the proceeds held to be applied to the payment of the prior mortgages of the defendants.