14 S.D. 597 | S.D. | 1901
The decision in this case, now before' us on rehearing, is reported in 13 S. D. at page 301, 83 N. W. 331, where the facts are fully stated; and it is held, on appeal from an order granting a new trial, that, notwithstanding defendants had never purchased the stock of merchandise in controversy, it was not erroneous to instruct the jury that the burden was upon plaintiff to prove that defendants had actual notice of its unrecorded mortgage prior to the time when they converted the property described therein, and appropriated the proceeds thereof to the payment of certain prior mortgages, which they then held. For the facts essential to a complete understanding of the relation of the parties to each other and to the property in dispute, we refer to the cases as reported in 9 S. D. 560, 70 N. W. 877, and 13 S. D. 301, 83 N. W. 331, above mentioned. Defendants not being subsequent purchasers or incumbrancers of the property described in plaintiff’s unrecorded mortgage the same is not void as to them, under section 4379 of the Compiled Laws; and, upon reflection, we are now satisfied that the following