20 S.D. 607 | S.D. | 1906
This is an appeal from a judgment entered, upon a directed verdict. The action was instituted in claim and delivery to recover the possession of a certain quantity of flax seed alleged to have been seized and taken into his possession by the defendant and which the plaintiff claimed to own by virtue of a certain farm lease executed by him to one Juhl on land in Minnehaha, county upon which the flax seed was raised, and he also claimed, an interest in said flax seed by virtue of a chattel mortgage executed to E. H. Hollister by said Juhl to secure the payment of certain promissory notes executed by said Juhl to said Hollister, but. which notes- and mortgage were owned by the plaintiff. At the-close of all the evidence the court directed a verdict in favor of the-plaintiff. The defendant and appellant seeks á reversal of the judgment and assigns as error the ruling of the court as follows: “ (x) That the plaintiff should have been required to elect upon which, cause of action he would proceed; (2) that the court erred in overruling defendant’s objections to certain testimony of the plaintiff;. (3) that the court erred in directing a verdict for the plaintiff.”
It will be noticed that the first error assigned is that the court-erred in refusing to require the plaintiff to elect upon which cause-of action he would rely. The complaint, as before stated, set out fully the execution of the farm lease which contains the following clause: “The title and ownership of all crops grown upon said, premises shall be and remain in said Lyon until all the conditions-of this agreement are fully complied with by said Juhl and all indebtedness that may be due or owing said Lyon by said Juhl is-fully paid” — and claimed that at the time the said flax seed was seized by the defendant there was a large sum due and unpaid to-him from the said Juhl. The plaintiff also sets out in his complaint the execution of certain notes and a chattel mortgage by said Juhl to said Hollister on the same flax seed seized by the defendant to-secure certain notes and of which notes and chattel inortgage the plaintiff was the real owner, and that at the time of the seizure o£
The appellant's contention that he was misled b)' the claim under the chattel mortgage is not entitled to any consideration, for the reason that the chattel mortgage was duly recorded and the law imputes to him constructive notice if he had not actual notice of the mortgage at the time he levied-upon the property. It appears, however, in this case by the uncontradicted evidence that he had actual notice of the existence of the mortgage prior to the levy. The appellant cites no authorities in support of his contention, and we do not deem it necessary to discuss it further.
The second contention of appellant, that the court erred in overruling certain objections of appellant to plaintiff’s evidence, is also without merit. The evidence was to the effect that the notes and mortgage securing the same were taken in the name of Hollister, but in fact belonged to the plaintiff; that the plaintiff had frequently taken notes and mortgages in the name of Mr. Hollister before
The last contention, that the court erred in directing a verdict for the plaintiff, is clearly untenable. The evidence as to the execution of the farm lease and the execution of the chattel mortgage and the existence of the indebtedness due on said farm lease and said chattel mortgage at the time the levy was made was uncon-tradicted, and there were no circumstances tending to throw any suspicion upon the transaction as was apparent in the case of the Iowa Nat. Bank v. Sherman & Bratager, 19 S. D. 238, 193 N. W. 19, and McGill v. Young, 16 S. D. 360, 92 N. W. 1066, and other cases cited by the appellant.
Finding no error in the record, the judgment and order denying a new trial are. affirmed.