4 S.D. 54 | S.D. | 1893
This is an action in claim and delivery, brought by respondent as administrator, to recover the possession of certain personal property held by appellant under and by virtue of chattel mortgages executed on the same by respondent’s intestate The facts are not in dispute, and it is not contended by respondent but that such facts would, if the mortgagee were still living, justify appellant’s possession; his claim being that, by the death of the mortgagor, the mortgagee’s right to take possession of the mortgaged property under the terms of the mortgage, either for foreclosure or for its preservation, became inoperative, and that by statute, (Section 5748, Comp. Laws,) upon respondent’s appointment and qualification as special administrator, it became his duty, and it was his right, to take and hold possession of this mortgaged property as a part of the estate of his intestate, as against the holder of
We do not think the position is tenable. The rights of the mortgagee are contract rights, and are not affected by the death of the mortgagor. In his contract of mortgage, deceased had agreed that if he made default the mortgagee might ‘‘take the said property wherever the same may be found. ” He had thus specifically disposed of his right to the possession of the property after default, and such right of possession, as against the mortgagee, was no longer a part of his estate. The administrator could take and administer only upon what estate his intestate left. After his default he still had the right to redeem, or, if unexercised, the right to any surplus after the mortgage debt was paid. This being the extent of the mortgagor’s right to or interest in the mortgaged property, this was all that passed to his administrator. He had disposed of the right of possession as effectually as though he had, to use a term more applicable to real estate, leased the property to another for a term still pending and undetermined at the time of his death. Suppose, instead of mortgaging this property, the deceased in his lifetime had turned it over as a pledge to secure the payment of this debt, and had died before the debt was paid; would it then be contended that it was the right and duty of the administrator to take and hold possession of such property against the pledgee? We think not, for that might destroy the pledge, (Section 4394, Comp. Laws;) and yet the interest of the estate in the property and its relation thereto would be the same in one case as the other. In this case the parties had deliberately fixed and defined their respective rights by a valid contract. Such contract did not terminate with the death of either, but continued to be the test by which the rights of each, or their representatives, must be determined. Cocke v. Montgomery, 75 Iowa, 259, 39 N. W. Rep. 386; Recker v. Kilgore, 62 Ind. 10.
Respondent contends that a reasonable construction of the