6 S.D. 557 | S.D. | 1895
The plaintiff instituted this action to recover possession of about 1,400 bushels of grain, claimed by the plaintiff to have been mortgaged to him by the terms of a chattel mortgage executed by the defendant. The plaintiff in his complaint set out the substance of the said chattel mortgage, and alleged that it was due and unpaid, and concludes as follows: ‘ ‘That said property, and the whole thereof, and the possession thereof, is wrongfully detained from plaintiff by defendant, and that plaintiff has demanded, and caused to be demanded, of defendant the possession thereof, but that defendant has always hitherto neglected and refused, and now neglects and refuses, to deliver the same, or any part thereof, to plaintiff. Therefore plaintiff demands judgment against the defendant for the immediate return and possession of said property, or the sum of $950, the value thereof, in case a delivery cannot be had, and for the costs and disbursements of this action.” The answer of defendant is as follows: “The defendant denies each and every allegation, matter, fact, and thing in said complaint contained, except as hereinafter admitted. The defendant admits the making of the notes and chattel mortgage as alleged in said complaint. The defendant specifically denies that he is the owner of any of the grain of any kind that was raised and harvested on the said N. E. i of section 29-128-57 during the year 1892, or that he is the owner or in possession of said land, but that one Daisy Young is the owner of and entitled to the possession of said crop so raised during the year 1892, and that she is in possession of said land by virtue of a lease; that all the property taken by the sheriff in this action is the property
The learned counsel for appellant contend that the judgment in this case should be reversed upon the following grounds: (1) That the defendant, by his general denial, put in issue his possession of the property at the commencement of the action, and the jury, having found all the issues in favor of the defendant, necessarily found that he was not in posession when the action was commenced, and he was not therefore entitled to a return of the property. (2) For the reason that the defendant did not by his pleading or evidence connect himself with the title or right to the possession of the property, and hence did not show himself entitled to a return of the same.
The general denial under the Code puts in issue, not merely the unlawful detention of the property by the defendant, but also the title and right to the possession of the plaintiff, and under it the defendant may not only show that the plaintiff has no title or right to the possession, but, by way of establishing that fact, he may prove title in himself or in a stranger; and,
The second proposition of- counsel is equally untenable. The rule of law- has long been settled that when the defendant pleads property in himself or a stranger, or traverses the plain
Again, it is contended by the respondent that the defendant was the agent of Daisy Young in respect to this grain. There is some evidence to show that, in the raising and disposition of this -grain, he was acting as her agent, and, if the-jury so found, we should not be disposed to disturb the verdict, though he does not allege in his answer that he held possession of the grain as her agent. Under his denial of plaintiff’s ownership and right to possession of the grain, he could have proven that it belonged to Daisy Young,- and that he had possession of it as her agent. Griffin v. Railroad Co., 101 N. Y. 348, 4 N. E. 740. If such was the fact, -he was clearly entitled to a return of the grain or its value, under all the authorities.
On the trial, the defendant offered in evidence the record in the case of J. Voak & Co. against the defendant. Robert Young, by which it appeared that said Voak & Co. held a prior mortgage upon the real estate; that they had commenced an action to foreclose the same; that in that -foreclosure proceeding-one S. C. Swayne had been appointed receiver of the rents and
We are of the opinion that the defect or mistake in the lease could easily have been obviated at the trial had the attention of respondent’s counsel been called to it by a specific obobjecbion. He could have withdrawn the written lease, and proved the leasing by parol, as it was not a lease that was required to be in writing. The lease bears date April 19, 1892,
Our conclusions,are that the.verdict in this case was fully justified by the pleadings and the evidence, and that the judgment properly followed the verdict. Finding no error in the record, the judgment of the circuit court is affirmed.