Calkins v. First Nat. Bank

• Decision Date: 03 April 1906
• Citation: 107 N.W. 675,20 S.D. 466
• Parties: CALKINS v. FIRST NAT. BANK OF CUSTER CITY.
• Court: South Dakota Supreme Court

107 N.W. 675

20 S.D. 466

CALKINS v. FIRST NAT. BANK OF CUSTER CITY.

Supreme Court of South Dakota

April 3, 1906

Appeal from Circuit Court, Fall River County.

Action by Israel Calkins against the First National Bank of Custer City. Judgment in favor of plaintiff. Defendant appeals. Reversed, and new trial ordered.

Martin & Mason and S. E. Wilson, for appellant.

Cleveland & Juckett, Ed. L. Grantham, and Chauncey L. Wood, for respondent.

HANEY J.

This action was commenced in August, 1898. The complaint was in the usual form, alleging the conversion by defendant in June 1897, of a band of horses owned by plaintiff and branded "IC." Defendant's answer denied each of the allegations of the complaint and alleged that during June 1897, it was the owner of a large number of horses branded "IC"; said horses then and there being in Custer county, S. D., and that defendant removed a portion of said horses, to wit, about 160 head, from the county of Custer to the eastern part of the state of South Dakota for the purpose of disposing of the same as the defendant had a good and lawful right to do. On January 23, 1903, the jury returned a verdict in favor of the plaintiff for $2,188. Subsequently defendant's motion for a new trial was denied, judgment entered on the verdict, and this appeal taken.

The first assignment of error to which attention is called by argument of counsel is the refusal of the court to direct a verdict in favor of the defendant. The plaintiff testified "I have lived at Hot Springs 12 years. I have known the 'IC' bunch of horses for 25 or 30 years and owned the original band." Witness then gave the history of the band from the beginning: "I signed that bill of sale in jail, down in lower town." The bill of sale was introduced in evidence. It was in the usual form, executed by Israel Calkins and Elizabeth Calkins, in the presence of M S. James and Seth Gifford as witnesses (the latter was then sheriff), recited a consideration "of $2,000 to him in hand paid at or before the delivery of these presents, by Levi W. Perkins, of Custer county, S. D., the receipt of which is hereby acknowledged," and described the property as follows: "All of the horses, mares, and colts and all of the young colts not yet branded belonging to the said mares, all of which are branded 'IC' on the left shoulder. These presents are a complete transfer of the said brand 'IC' and all the horses, mares, and colts bearing said brand; one coach horse stallion about 10 years old, weight 1,500 pounds, named 'Fox'; all the mules I own, three wagons, two saddles, one bridle, two sets of harness"--and contains a general warranty against all and every person and persons whomsoever, dated March 16, 1891. "I took proceedings to recover that band of horses in 1892. Before beginning such proceedings, I was away from that part of the country, at Yankton--that was after the making of this bill of sale--in the State Hospital for Insane. After my return I took action to recover those horses. I offered to pay Mr. Perkins the amount received by me and take a transfer back of the horses. He refused, and I brought suit, which was prosecuted to judgment." Plaintiff offered in evidence the decree of the circuit court of Custer county, in the case of Israel Calkins v. Levi W. Perkins, which was received. This judgment was entered on May 26, 1897; recited a trial of the case at the regular May, 1896, term of court, the findings of the court's decision in writing, and thereupon adjudges that the plaintiff, Calkins, have and recover of and from the defendant, Levi W. Perkins, the possession of all that certain band of horses known as the "IC" band, together with all the produce thereof excepting such portion as has been disposed of by defendant since March 16, 1891, and accounted for by him to the plaintiff; then follows a detailed description of the property, ranging in value from $5 to $17.50 each, making an aggregate value of $2,325. The witness then detailed his endeavors to recover the horses in suit. Seventy-one head of the "IC" band are in litigation at Faulkton, S. D., and are not in controversy in this proceeding. He also described certain of the horses heretofore recovered by him from various parties.

Plaintiff's wife testified: "Q. I will ask you if you had or claimed any interest of your own in the band of horses described in the bill of sale offered in evidence, signed by yourself and husband? A. No, sir; I did not. Mr. Calkins was in jail when he signed this bill of sale. He was afterwards taken to the insane asylum. He was taken from home and his children in June, and kept down there in that little hole [the jail], and afterwards sent to Yankton, about the 1st of August, and he was there about six months, and he came back the last of January or first of February, 1892. The sale of these horses for that amount [$2,000], at that time, was for the purpose of enabling Mr. Calkins and myself to furnish a cash bond of $1,000, which was furnished while Mr. Calkins was still in jail." Records of the circuit court were introduced showing an indictment was found against the plaintiff on November 22, 1890, which was dismissed November 18, 1891. Defendant introduced a chattel mortgage in the usual form, dated February 25, 1893, executed by Levi W. Perkins to the First National Bank of Custer City, mortgaging 145 head of horses, all branded "IC" on left shoulder, lately purchased from Israel Calkins, together with the increase thereof as security for the payment to said bank of $2,600, and interest, as expressed in two promissory notes dated February 25, 1893, one for $2,000, payable March 12, 1893, and one for $600, payable May 26, 1893, with interest at 12 per cent. per annum until paid. The mortgage contains the usual warranty and provisions as to possession and sale in case of default; sale to be had after giving at least 10 days' notice thereof, and was witnessed by W. F. Hanley and F. A. Towner. It was afterwards filed for record with the register of deeds of Custer county, October 29, 1895, at 10:45 a. m. The notes referred to in it are the notes offered in evidence. The report of the chattel mortgage sale was made by H. N. Ross, deputy sheriff of Custer county, setting forth the due advertisement or proper notice of sale with due proof of publication attached. The report also sets forth in due form the fact of the sheriff's sale of the property covered by said mortgage, on June 12, 1897, to the First National Bank of Custer, for the sum of $1,392, leaving a deficiency due on the mortgage indebtedness of $1,278.60. The property described in said report of sale consists of 174 head of horses and mares from 3 to 9 years old, branded "IC" on left shoulder, and about 25 head of suckling colts, the increase of said stock. The bill of sale was executed by H. N. Ross, as deputy sheriff, to the First National Bank, and was based upon said foreclosure sale, covering the property therein described and containing the usual provisions.

Levi W Perkins testified: "I live near Phoenix, Arizona, and am the man who executed the chattel mortgage on or about February 25, 1893,...