160 N.W. 325 | S.D. | 1917
Thi's action was instituted: ¡by plaintiffs, as mortgagees, to recover 'the value of certain mortgaged cattle alleged to have 'been wrongfully sold and the proceeds thereof converted to -their own use by defendants. The action was tried before the oourt without a jury, by consent of parties, and findings and judigment were in favor -of plaintiffs, and defendants appeal. The vital question to- be -determined is which of the parties, plaintiffs or defendants, are entitled to -the money proceeds arising- from the sale by defendant Meade -County Bank of certain cattle covered by two certain mortgages, one owned by plaintiffs and the -other -owned ¡by said defendant bank. From the evidence and findings of fact it appears that on the 8th day of October, 1908, one English, as- mortgagor, mortgaged to the St. Paul 'Cattle Doan Company 569 head of cattle and 50 head- of horses, situated in Butte county, wherein said -mortgagor resided, to secure- the payment of $10,200, due on the 25th day of November, 1910, and which mortgage was duly filed on the 12th day of October, 1908. On the 21st day of October, 1909, the said English mortgaged- to plaintiffs 569 and 274 head of -cattle and 50 head of bouses, situated in Butte county, to secure the payment of $6,232.90, -due October 21, 1910, and which mortgage was -duly filed on the 23-d -day of October, 1909. O11 the 25th day of November, 1910, the said English mortgaged to the defendant Meade Count}'' Bank 227 head1 -cif cattle, covered by the two .preceding chattel -mortgages, to secure the sum of $5,200, that -day loaned to said English by said -defendant b-anlc, which chattel mortgage was duly filed on the 29th -day of November, 1910. At the time this third mortgage was made there was still due and unpaid on the said first mortgage indebtedness to the said St. Paul 'Cattle- Loan- 'Ooimpany the sum of $3,528.37, which amount was1 -paid from- the loan made to English hy the defendant bank, and thereupon, on the 29th day of November, 1910, the said St. Paul Cattle Loan Company -duly filed a satisfaction of said first mortgage, and upon the- filing of said satisfaction the original first mortgag'd was -delivered to- said English, said mortgagor. On the 10th day of June, 1911, the said English executed and -delivered to said Meade County Bank an instrument in
“■South St. Paul, Minn., Oct. 22, 1910.
“Meade Counity Bank, Sturgis, S. D. — .Gentlemen: Mr. Richard English of Bison, S. D., just called on us and says that lie owes the St. Paul Cattle Doan Company about $3,500.00 and wishes us to take up. same. As we are not ini a position to do this at thi-s' time and as we are willing to carry Mr. English’s indebtedness over another year on what he owes us he asks us to give him this letter to you saying that we would carry him over another year on ours provided you would take up his indebtedness- 'to the St. Paul Cattle Loan Company. Of course we would1 be perfectly willing to accept the money on our loan to Mr. English in -the event that you cared for the entire loan. Yours truly, Slimmer & Thelmas, by L. J. Thomas.”
■ “One who gains a: thing by fraud, accident, mi-s-táke, undue influence, the- violation of a trust, or other wrongful act, is, unless he has some 'other and- better right thereto, an involuntary trustee of the-thing gained, for the. benefit of 'the person who would otherwise have had it.”
Under this'section 6-f the statute''the seizure and disposition of 'said cattle, under the circumstances" of this case, dearly constituted the5 §aid' defendant bank1 an involuntary or constructive trustee of the' -proceeds of -the cattle'-covered by pláinitffs’ niort-
Appellants also contend that the defendant Meade County Bank, under the evidence in this oase, became and was subrogated to the rights of the St. Paul Cattle Loan 'Company under its first mortgage to’ the extent of $3,528.37, that being the amount of the said loan by said bank to said English that was used in satisfying the balance due on the said first mortgage. Whether or not said appellant was entitled to and became subrogated to the rights of the first mortgagee was dependent upon the facts disclosed by the evidence on the trial of this case. There was evidence for and against upon this issue. The trial court by its findings found against the appellant M'eade County Bank upon this issue. It will serve no useful purpose to detail the evidence further than to state that we are of the view that the evidence sustains the finding made by the trial court, and that under the findings so. made by the trial court subrogation could not exist in favor of said appellant.
Various other assignments of error are urged, all of which have been carefully considered, and we are 'of the view that no error has 'been shown to exist 'by reason thereof. It will serve no useful purpose to further refer thereto'.
Finding no error in the record, the judgment appealed from is affirmed.