Castle v. Gleason

• Decision Date: 03 February 1915
• Docket Number: No. 3666.,3666.
• Citation: 35 S.D. 98,150 N.W. 895
• Parties: CASTLE v. GLEASON et al.
• Court: South Dakota Supreme Court

35 S.D. 98

150 N.W. 895

CASTLE

v.GLEASON et al.

No. 3666.

Supreme Court of South Dakota.

Feb. 3, 1915.

Appeal from Circuit Court, Union County; J. W. Jones, Judge.

Action by W. D. Castle against John Gleason and another. From a judgment for plaintiff and an order denying a new trial, the defendant named appeals. Affirmed.Gantt & Ellis, of Elk Point, for appellant.

Thos. McInerny, of Elk Point, and French & Orvis, of Yankton, for respondent.

GATES, J.

In the case of Castle v. Gleason, 31 S. D. 590, 141 N. W. 516, a decision was rendered by this court reversing the judgment of the trial court for that the error in a chattel mortgage, purporting to be given upon crops to be grown in 1912 instead of the year 1911, was held not to be a clerical error. It was also held in that case that a reformation of the mortgage should have been sought. Upon the return of that proceeding to the trial court, that action was dismissed, and the present action was begun against Gleason and Jonas Warren, the mortgagor, alleging a written lease between Warren and the plaintiff as well as the chattel mortgage, and seeking to have the mortgage reformed so as to cover the 1911 crops instead of the 1912 crops, and for the recovery from Gleason of the value of the corn alleged to have been converted by him. The action was tried by the court, but special issues were submitted to a jury which found that Gleason converted the corn, the value thereof, and that he then had knowledge of the existence of plaintiff's mortgage. The trial court adopted the special verdict of the jury and made findings of fact and conclusions of law favorable to plaintiff. From the judgment rendered thereon and from an order denying a new trial, defendant appeals.

Upon the trial it appeared from the evidence that the lease, for the payment of the rent under which the chattel mortgage was given, was in writing and contained a provision that the title to all crops should remain in the lessor until division thereof. Had that fact appeared upon the record of the former appeal, under appropriate pleadings, the judgment in that case would have been affirmed upon the authority of Savings Bank v. Canfield, 12 S. D. 330, 81 N. W. 630, and Dobbs v. Atlas El. Co., 25 S. D. 177, 126 N. W. 250. It is now urged by appellant that the title to the crops being in the lessor there was nothing to mortgage, that therefore there was no need of reformation of the mortgage, and that plaintiff's remedy was at law. The cases above cited would seem to be authority for that contention, but this point does not appear to have been brought to the attention of the trial court, nor do...