Hanover Nat. Bank v. Farmers' & Merchants' State Bank
| Decision Date | 15 October 1929 |
| Docket Number | 6562. |
| Citation | 227 N.W. 67,55 S.D. 598 |
| Parties | HANOVER NAT. BANK v. FARMERS' & MERCHANTS' STATE BANK et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brule County; R. C. Bakewell, Judge.
Action by the Hanover National Bank against the Farmers' & Merchants' State Bank and others. From a judgment for defendants, and an order overruling a motion for new trial plaintiff appeals. Affirmed.
Hitchcock & Sickel, of Mitchell, for appellant.
Clark & Wyman, of Yankton, for respondents.
On September 4, 1922, one Stein, a farmer living near Kimball gave a note and chattel mortgage for $5,000 to one Schoenberger. On July 2, 1923, Stein gave a renewal note and mortgage for a similar sum to Schoenberger. On October 30 1923, the same mortgagor gave to the same mortgagee a note for $7,500 and a chattel mortgage, in renewal of the mortgages previously given. The first mortgage described "one hundred and twenty shoats, average weight one hundred pounds"; the second covered "one hundred red spring shoats, weight fifty pounds and one hundred twenty red hogs, weight two hundred and twenty-five pounds"; and the third mortgage described "two hundred and twenty-five hogs and shoats, average weight about one hundred pounds, following the cattle in feed lots."
Between the dates of the execution of the second and third mortgages above mentioned, and on September 20, 1923, Stein gave a mortgage to secure the sum of $3,000 to Schoenberger which described "twelve brood sows, red color, weight about four hundred pounds each and one hundred and twenty-five head of red shoats, average weight about one hundred pounds." Each of these mortgages describes the property as in the possession of the mortgagor at his farm and as being free from all incumbrance. The three mortgages first above mentioned were assigned to appellant, Hanover National Bank of New York, and the last-mentioned mortgage was assigned to the respondent Farmers' & Merchants' State Bank of Yankton.
About March 24, 1924, one Donahoe, who was an officer and agent of respondent bank, took from the mortgagor 77 or 78 head of hogs, had them trucked to town, sold 6 or 7 locally, and shipped the remaining number to market. The hogs taken are described in the record as common hogs, red hogs, and as including some brood sows. The proceeds of the animals thus sold, according to appellant's allegation, amounted to $1,182.37, which appellant demands of respondent by reason of its alleged wrongful conversion of the animals upon which appellant claims a lien. The animals were disposed of by respondent without proceedings in foreclosure sale. Thus, if the hogs were covered by a mortgage given Schoenberger before September 20, 1923, when the mortgage was given which respondent acquired the seizure was wrongful; and if the animals were covered only by appellant's mortgage of October 30, 1923, and by respondent's mortgage of September 20, 1923, a disposition of the property without procedure in foreclosure sale, by respondent, would constitute a conversion, notwithstanding that respondent's mortgage may have been the first mortgage on these particular animals. La Crosse Boot & Shoe Mfg. Co. v. Mons Anderson Co., 13 S.D. 301, 83 N.W. 331.
Tried below to the court without a jury, the case resulted in a finding to the effect that the evidence failed to establish the identity of the hogs taken by respondent as animals mortgaged by Stein to the appellant's assignor. From judgment accordingly entered and from order overruling motion for new trial, the Hanover National Bank appeals. The appeal herein is addressed to the jurisdiction of this court to reverse findings of the trial court which are against the clear preponderance of the evidence. It is to be observed that more than a year passed during the period in which the several mortgages were executed, and that the mortgaged animals are referred to in terms of somewhat general description. The evidence is here quite as definite to the...
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