Coughran v. Sundback

• Decision Date: 17 March 1897
• Citation: 70 N.W. 644,9 S.D. 483
• Parties: COUGHRAN v. SUNDBACK, Sheriff.
• Court: South Dakota Supreme Court

70 N.W. 644

9 S.D. 483

COUGHRAN v. SUNDBACK, Sheriff.

Supreme Court of South Dakota

March 17, 1897

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Claim and delivery by E. W. Coughran against John Sundback, sheriff of Minnehaha county. From a judgment for plaintiff, and from an order overruling a motion for a new trial, defendant appeals. Affirmed.

Joe Kirby and Aikens, Bailey & Voorhees, for appellant. A. A Polk, for respondent.

FULLER J.

To recover immediate possession of certain stacks of wheat and oats for the purpose of foreclosing a chattel mortgage thereon, for the reason that plaintiff deemed himself insecure, this action in claim and delivery was brought against a sheriff, who justified the seizure and sale thereof under an execution based upon a judgment existing against the mortgagor, I. N. Griffith, in favor of A. H. Wait for $207.41. The case was sent to a referee, upon whose findings of fact and conclusions of law the court entered judgment against the defendant in plaintiff's favor for a return of the property or for $795, the value thereof, in case a delivery could not be made. This appeal is by the defendant from said judgment, and from an order made after the entry thereof, overruling a motion for a new trial. Upon the ground that the following paragraphs of the answer constitute no defense to the action, a demurrer was interposed and sustained. Defendant "alleges that, if plaintiff had a valid chattel mortgage, as alleged in the complaint, it covered a large amount of personal property not mentioned in the complaint, which property was, at the time of the alleged attempt of foreclosure, in the possession of the said I. N Griffith, and was worth and of sufficient value to satisfy any indebtedness owing, if any, from said Griffith to plaintiff, and secured thereby; that at the time of said levy and sale this defendant notified the plaintiff that if he had any lien upon the property so levied upon, together with other property of said Griffith, that he satisfy the same out of the property not levied upon; that if any indebtedness exists in favor of the plaintiff against said Griffith, and secured by a chattel mortgage, as alleged in the complaint the said plaintiff could at the said time have satisfied and gotten payment out of the property alleged to be covered by said mortgage other than that levied upon, and, if the same has not been done, it has been contrary to the desire and request of this defendant, and owing to the neglect of said plaintiff." From the complaint, which states a cause of action in claim and delivery, and from the chattel mortgage attached and made a part thereof, it appears that respondent, the assignee of the mortgage, is entitled to take possession of the personal property therein described wherever found, and whenever he deems himself insecure, or any attempt is made by any person to remove or dispose of said property, or any part thereof. As appellant seized the mortgaged property under an execution without first paying, tendering, or depositing the amount secured thereby, as required by section 4389 of the Compiled Laws, he was a trespasser as against respondent, from the beginning, and replevin is the proper remedy to recover the immediate possession of the property thus wrongfully taken and detained, or the value thereof, in case a delivery cannot be had. Comp. Laws, §§ 4972, 5063; Keith v. Haggart, 4 Dak. 438, 33 N.W. 465; Welch v. Sackett, 12 Wis. 243; Rankine v. Greer, 38 Kan. 343, 16 P. 680; Lorton v. Fowler, 18 Neb 224, 24 N.W. 685; Frisbee v. Langworthy, 11 Wis. 375. The gist of the action being appellant's wrongful taking and detention of the property described in the complaint at a time when respondent was, under the express terms of his mortgage entitled to the immediate actual possession thereof as against the world, the value of other property included therein, but not levied upon, was not material, and the paragraphs of the answer relating thereto were properly eliminated on demurrer. If the mortgage was valid, the levy was void, and respondent, being entitled to...