3 S.D. 106 | S.D. | 1892
This is an action of claim and delivery brought to recover possession of certain personal property upon which the plaintiff claimed to have a chattel mortgage, which was given to secure a loan made by plaintiff to one E. M. McMillan. The defendant filed an answer alleging: (1) A general denial; (2) that he was sheriff, and as such held in his hands several writs of attachment against said E. M. McMillan, the mortgagor, and that he claimed to hold the property by virtue of said writs; (3) that the mortgage to plaintiff was given without consideration, and that the plaintiff had entered into a conspiracy with various par-. ties to cheat and defraud the creditors of the said E. M. McMillan; and (4) set up, by way of counterclaim, the matters, in substance, as alleged in the answer, and demanded judgment for a return of the property or its value, and damages for the detention, or, in case the mortgage was a valid lien upon said property, that plaintiff account for the value, or that the surplus, after satisfying such lien, should be applied upon the attachments. To the counterclaim the plaintiff demurred, upon the grounds that the matters alleged do not constitute a counterclaim; that it is not a cause of action arising out of the same transaction set forth in the
Without considering the other points raised upon the demurrer, we think it should have been sustained on the ground that it does not state facts sufficient to constitute a cause of action. Section 4915, Comp. Laws, provides as follows: “The counterclaim mentioned in the last section must be one existing in favor of the defendant, and against the plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff’s claim connected with the subject of the action. (2) In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.”
The test of a counterclaim is whether the defendant could have maintained an independent action on the demand as set forth in it. In the case at bar the respondent’s theory is that, by the levy of the warrants of attachments in his hands as sheriff, a lien was acquired upon the property which he took'from the debtor McMillan, and, although the appellant may have had a prior chattel mortgage lien upon the same property, yet, when this mortgage lien had been satisfied, he, the respondent, was entitled to the surplus proceeds, by virtue of his secondary lien.
The defensive part of the answer alleges that the property covered by the chattel mortgage is worth nearly $9,000, while the amount of the money due for which the mortgage was given as a security is only $4,000. If that mortgage is fraudulent, it is void as to creditors. If the mortgage is valid, the plaintiff is entitled to the property for the purpose of satisfying his mortgage claim. The question of the fraudulent character of the mortgage is. at
In the counterclaim before us there is no allegation specifically setting forth the property or the funds on which the attachment liens — admitting that they exist- — could be laid. The allegation in the counterclaim is that the property was worth the sum of $8,800 at the time of the delivery to the plaintiff, and that all the right the plaintiff had to it was by virtue of a pretended chattel. mortgage, but does, not allege what was the amount of the mortgage. There is no allegation as to what the property brought at the sale under the mortgage. If there is any presumption aris