15 S.D. 551 | S.D. | 1902
This is an action in claim and delivery, in which the plaintiffs obtained the possession of a certain stock of goods under and by virtue of a chattel mortgage alleged to have been executed to them in June, 1899, by Neis E. Nelson and R. N. Seime, who were then the owners of the same. Findings and judgment were rendered in favor of the defendants, and the plaintiffs appeal.
The stock of goods in controversy had been taken possession of by the sheriff of Grant county, as the agent of the plaintiffs, for the purpose of foreclosing the same. The defendants Cownie and Herman and Carrie Shultz, by defendant Robinson, coroner of Grant county, took the same from the possession of the sheriff under attachment proceedings, and the plaintiffs brought this action. to regain possession of the same. On the trial Neis Seime inter
It is contended on the part of the plaintiffs that the court erred in its eighth finding of fact, in which it finds that the Park & Grant mortgage did not show on the face thereof, over the signatures of the mortgagors, any acknowledgment of receipt that a true copy of said mortgage had been delivered to and received by said mortgagors, or either of them. We cannot agree with counsel in this contention. The copy of the chattel mortgage given in evidence purports to have been signed by Neis E. Nelson and R. N. Seime, and below their signatures appears the following: “Received of Park & Grant a true and exact copy of the mortgage this 7th day of June, 1899.” This does not purport to be signed by any one. Section 2, Chap. 95, Laws 1897, provides “that every chattel mortgage shall be void unless it appears upon the mortgage instrument, over the signature of the mortgagor, that a true copy of the same has been delivered to and received by the mortgagor, as in section 1 of this *act provided.” As we have seen the purported receipt upon the chattel mortgage does not appear over the signatures of the mortgagors, or either of them; hence the purported acknowledgment does not come within the provisions of this section. The finding of the court is therefore sustained by the evidence.
On the trial the plaintiffs introduced in evidence the original affidavit, requisition, and undertaking in claim and delivery, and also the amended affidavit and requisition thereon, all of which were received in evidence without objection. In the amended affidavit appears the following statement: “that the actual value of the aforesaid property, to the best of affiant’s knowledge and belief, is five hundred dollars ($500).” The plaintiffs sought to contradict this statement by showing that the property was of less value than $500. The court excluded this evidence on the ground that, as plaintiffs had alleged the value of the property in their affidavit to be $500, they were precluded from showing that the property was of any less value. The plaintiffs contend that the court erred in this ruling, but this contention is untenable. As the plaintiffs had fixed the value of the property in their affidavit, they were precluded from showing any different value on the trial. In Wey
It is further contended on the part of the plaintiffs that the court erred in admitting in evidence the mortgage of the intervener without proof of its execution, but this objection is clearly untenable, for the reason that no objection was made to it's introduction upon that ground. The only objections appearing to have been made were that the same was incompetent, immaterial, and irrelevant, and for the the further reason that it could have had no reference to the disposition of the goods in controversy, as it appears that the filing of the intervener’s mortgage was made subsequent to the filing of
It is further contended on the part of the plaintiffs that the note and mortgage under which the intervener claimed the property had been paid, but it will be noticed that the court found otherwise, and we are of the opinion that the finding is fully sustained by the evidence. D. N. Seime executed the note and mortgage to the bank for $300. The bank not being satisfied with the security, the intervener executed another note to the bank as collateral security. This latter note the intervener paid, and thereupon the bank transferred to him the original note and mortgage. Clearly, this was not a satisfaction of the original note and mortgage. The intervener, after paying his own note given as collateral security to the note of L. N. Seime, was entitled to the original note and mortgage executed by him; and upon the transfer of the same to the intervener by the bank he became the owner thereof, and was entitled to enforce the collection of the same. Section 4309 Comp. Laws; Lien v. Bank, 12 S .D. 317, 81 N. W. 628.
The court having found that the property taken into his'possession by the sheriff under the claim and delivery proceedings had been delivered to the plaintiffs and disposed of by them prior to the trial, properly entered judgment in favor of the attaching creditors' and the intervener against the plaintiffs .for the amount due them on their respective claims, to the extent of $500, fixed as the value of the property by the plaintiffs in their affidavits.