5 Dakota 282 | Supreme Court Of The Territory Of Dakota | 1888
Appellant brought an action in the district court of the county of Davison against respondent, to recover the possession of one brown mare, one two-seated light spring wagon with cover, and alleged the value of all of said property to be $300. In pursuance of the requisition of appellant, the officer delivered the said property to said appellant. The complaint in the action contained the usual averments in such actions, and alleged that the appellant was entitled to the possession of the property described, by virtue of certain chattel mortgages given by J. H. Stuckey and A. J. Stuckey to the Madison
There was no error in the ruling of the court in directing a verdict for respondent, for the very plain reason that the complaint did not allege any fact showing default in any of the conditions of the mortgage, nor that they had any condition under which it could claim possession of the property. The appellan4 did not make its case at the trial any broader than it had pleaded it. No evidence was introduced or offered to be introduced by appellant' showing any mortgage, with conditions or breach of any such conditions. The mere fact that appellant owned these mortgages gave it no right to the possession of the property, without the happening of some event provided for in the mortgage by virtue of which it could take possession, and, if such event had occurred, it was necessary to allege and prove it.
Neither was there any error in the verdict of the jury in finding the value of the property to be $300. That was the sworn value put upon it by appellant; and while it would have been correct if the mortgagor had brought this action against respondent to have limited the jury to finding the interest in the property which the respondent had, yet where a third party seeks to take property from the mortgagee which he holds by virtue of a mortgage, and that third party shows no right to the possession thereof, it is the proper practice to let the jury find the full value of the property, for the very plain reason that the mortgagee is responsible to his mortgagor for the full value of the property, and is obliged to return the mortgagor any surplus which shall remain after satisfying his own claim, which he could not do without paying it out of his own funds, if he could not recover from the third party the full value of the property taken from him. No error appearing in the record, the judgment of the lower court is affirmed.