11 S.D. 252 | S.D. | 1898
So far as this appeal relates to an order made after judgment on the hearing of a motion for a new trial, but never entered, the same will be disregarded, and the case considered not otherwise than an appeal from the judgment alone, presenting only alleged errors of law occurring at the trial, including the direction of a verdict upon the undisputed evidence Threshing Machine Co. v. Skau, 10 S. D. 636, 75 N. W. 199; Haggarty v. Strong, 10, S. D. 585, 74 N. W. 1037; Jones v. Faris, 6 S. D. 112, 60 N. W. 403.
At the trial of the action which is claim and delivery; tore-cover the possession of chattels described in a mortgage, the following state of facts was established by the uncontroverted testimony of numerous witnesses: On the 21st day of October, 1893, to secure a pre-existing indebtedness the defendant executed a mortgage on a'span of mares and five cows, together
Appellant, in its complaint, appealed to the equity side of the court for a reformation of the mortgage, upon the theory that by the mutual mistake of the parties the premises upon which the grain was to be raised were erroneously described; but the testimony conclusively shows, and the jury expressly found, that such description was not the result of a mistake, and the evidence offered and rejected tends only to strengthen the view that respondent deliberately gave a wrong description of the land for the sole purpose of deceiving the mortgagee. In harmony with all well considered cases, this court has held that claim and delivery, of which wrongful detention is the gist, can be maintained only with reference to personal property, which at the time of the commencement of the action was in either the actual or constructive possession of the defendant; and, as the evidence was uncontroverted, the verdict was properly directed so far as the same related to the cows and horses described in the mortgage. Willis v. DeWitt, 3 S. D. 281, 52 N. W. 1090.
The remaining'point presented for our consideration ema-. nates from the error on the part of appellant in the description of the premises, caused Confessedly by the fraudulent representations of respondendent at the time the mortgage was executed. While the grain taken in this action was of the charac