Com. State Bank v. Interstate Elevator Co.

• Decision Date: 20 February 1901
• Citation: 14 S.D. 276,85 N.W. 219
• Parties: COMMERCIAL STATE BANK, Plaintiff and appellant, v. INTERSTATE ELEVATOR CO, Defendant and respondent.
• Court: South Dakota Supreme Court

14 S.D. 276, 85 N.W. 219, 86 Am.St.Rep. 760 (1901)

COMMERCIAL STATE BANK,

Plaintiff and appellant,

v.INTERSTATE ELEVATOR CO,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, McCook County, SD

Hon. Joseph W. Jones, Judge

Affirmed

E. H. Wilson, C. D. Goldsmith

Attorneys for appellant.

Pyle & Taylor

Attorneys for respondent.

Opinion filed February 20, 1901

CORSON, J.

This is an action by the plaintiff to recover of the defendant the value of 500 bushels of wheat alleged to have been converted by the defendant. Judgment for the defendant, and the plaintiff appeals. The plaintiff in its complaint alleged that it was entitled to the wheat by virtue of a chattel mortgage executed by one Hans Olson to the plaintiff, bearing date the 9th day of June, 1898, given to secure the payment of a certain promissory note executed by said Olson for the sum of $720.75, bearing date the same day, and payable on the 1st day of October, 1898, with interest at the rate of 8 per cent, per annum, and a copy of said mortgage is annexed to the complaint and made a part thereof. The defendant in its answer admits that said Olson executed and delivered the instrument in writing set out in plaintiff’s complaint, and that said instrument was left with the register of deeds for Miner county, and entered upon the records of Miner county as though it had been a chattel mortgage, but denied that said Olson executed any chattel mortgage at any time, and denied that any chattel mortgage executed by said Olson was at any time filed for record in the office of the register of deeds for Miner county. Defendant further alleged that it purchased of said Olson, and in good faith, and without any knowledge of the claim thereon of the plaintiff, 531 bushels of wheat, and paid therefor the sum of $256.78, and that the defendant purchased said wheat without any knowledge whatever as to where said wheat was raised. The answer of the defendant was evidently drawn upon the theory that the description of the mortgaged property in the mortgage was insufficient to impart constructive notice to third persons, and that it was not, therefore, in law a chattel mortgage, and such seems to have been the view taken by the court below. The court in its findings, among other things, found that the wheat sold and delivered by Olson to the defendant, and by it converted to its own use, was raised during the year 1898 upon the west one-half of section 14, and the southeast quarter of section 15, township 105, n., range 55, w., in the county of Miner, being the same land mentioned in plaintiff’s complaint, and that the defendant had no knowledge of these facts further than such constructive notice as the filing of the instrument executed by Olson to the plaintiff would impart. The court further found that prior to the commencement of this action the plaintiff duly demanded that defendant deliver to it the said wheat so converted or the value thereof, and that the defendant has at all times refused to comply with such demand, and the court concludes as matter of law that the description was insufficient to impart any notice to the defendant. The first question, therefore, presented for the decision of this court is, was the description of the property as given in said mortgage sufficient to impart constructive notice to the defendant?

The mortgage, so far as necessary to be given in this opinion, reads as follows:

“Know all men by these presents that Hans Olson, … party of the first part, being justly indebted to the Commercial State Bank of Salem, McCook county, state of South Dakota, party of the second part, in the sum of seven hundred twenty and 75-100 dollars, which is hereby confessed and acknowledged, has, for the purpose of securing the payment of said debt, granted … unto the said party of the second part, his successors or assigns, all that certain personal property described as follows, to-wit: All the crops of every name, nature, and description, consisting of 340 acres of wheat, 15 acres flax, 10 acres oats; all the property now being in the possession of said first party in the county of and county of Miner and State of South Dakota, and is free from all incumbrance whatever, except $200 given to Wm. Blankartz.”

This court has laid down the rule that “a mortgage of personal property is sufficient, as to description, if it be such that a prudent, disinterested person, aided only and directed by such inquiry as the instrument itself suggests, is able to identify the property.” Thresher Co. v. Schmidt, 9 SD 489, 70 N.W. 646 (1897); Bank v. Koechel, 8 SD 391, 66 N.W. 933 (1896); Coughran...