James v. Wilson

• Decision Date: 02 December 1898
• Citation: 8 N.D. 186,77 N.W. 603
• Parties: JAMES et al. v. WILSON et ux.
• Court: North Dakota Supreme Court

8 N.D. 186

77 N.W. 603

JAMES et al.

v.WILSON et ux.

Supreme Court of North Dakota.

Dec. 2, 1898.

Syllabus by the Court.

In an action of claim and delivery for the unlawful detention of chattels,-which is an action in the nature of replevin in the detinet,-the defendant is permitted under a general denial to show by way of defense a right of possession superior to that of the plaintiff, either in himself or another, even if a stranger to the action; but such right of possession must be an absolute right, and not one dependent upon circumstances or conditions. Accordingly held, where such action was brought by a second mortgagee against the mortgagor for the possession of goods and chattels covered by the mortgage, the mortgagor cannot show in his defense that there is a prior outstanding and unpaid chattel mortgage upon the same property described in the plaintiff's mortgage, there being no evidence that the owner of the prior mortgage ever demanded possession of the property in question.

Appeal from district court, Pembina county; O. E. Sauter, Judge.

Action by Williams James and Benjamin James against Robert Wilson and Jane Wilson. Judgment for defendants, and plaintiffs appeal. Reversed.Young & Burke, for appellants. John D. Stack, for respondents.

WALLIN, J.

This action was brought to recover the possession of personal property, consisting of wheat, oats, and barley, and certain farm machinery. Plaintiffs claim the right of possession under two chattel mortgages covering said property, executed by the defendant Robert Wilson, and delivered to the plaintiffs to secure certain promissory notes described in the mortgages. It is conceded that the notes were due and unpaid when this action was commenced, and both of the notes and mortgages were put in evidence without objection. It was expressly conceded by the defendants' counsel at the trial that the plaintiffs were entitled to the possession of said farm machinery, and, on the other hand, it was practically conceded by the plaintiffs' counsel that under the evidence the mortgages of the plaintiffs did not cover the oats and barley. At the close of the case the trial court directed a verdict in favor of the defendants as follows: “The court directs you that your verdict will be for the defendants, Robert Wilson and Jane Wilson, in this action, for the possession of the wheat, oats, and barley described in the complaint; and, in case a return thereof cannot be had for the value thereof, the value to be fixed by you under the evidence given here in court. The amount will be shown by the papers, and I think is undisputed. You will arrive at the value from the evidence given by the witnesses here in court.” Pursuant to this direction of the trial court, the jury returned a verdict for the value of said grain, aggregating $344.58. The defendants' answer was amended at the trial, and, as amended, embodied a general denial, and also set out the following as a special defense: “Third. That the right to the possession of all the crops mentioned in the complaint was at the time of the commencement of this action, and at all times since and prior thereto, in one Mary Simmons, and not in these plaintiffs, or either of them.” In support of this special defense the defendants offered testimony tending to show that the defendants had, long prior to the execution of the two chattel mortgages of the plaintiffs, made and delivered two other chattel mortgages to secure the defendants' obligations, and that the same had been properly filed, and were due and outstanding mortgages, and that the same were unpaid at the time this action was commenced, and were then owned by the said Mary Simmons. The fact that said prior mortgages were executed and delivered is conceded by the plaintiffs' counsel, but plaintiffs' counsel strenuously contends that the evidence shows that one of said mortgages was paid prior to the commencement of this action, and that the other had ceased to be a lien, for the reason that payment thereof had been tendered prior to the commencement of this action, and that said tender had been kept good. The two prior mortgages and the notes secured thereby were put in evidence by the defense against the plaintiffs' objections, and this ruling is assigned as error in this court. This evidence was objected to on various grounds, only one of which need be referred to, viz. that such evidence was incompetent, irrelevant, and immaterial, and does not tend in any way to disprove plaintiffs' right to the possession of the property described in the complaint. As we have determined that this objection is vital, and must be sustained, it need not be decided in this case whether the prior mortgages had or had not been paid or legally discharged at any time prior to the commencement of this action or at all; and we shall assume for the purposes of this decision that the mortgages were due and unpaid, and were the property of Mary Simmons when the action began. The action being in the nature of replevin in the detinet, it was competent for defendants to show, when the action was commenced, either that the defendants were lawfully entitled to the possession of the property, or that some person other than the defendants had the right of possession as against the plaintiffs. This...