McQueen v. Bank of Edgemont

• Decision Date: 03 April 1906
• Citation: 107 N.W. 208,20 S.D. 378
• Parties: EVA McQUEEN, Plaintiff and respondent, v. BANK OF EDGEMONT, Defendant and appellant.
• Court: South Dakota Supreme Court

20 S.D. 378

107 N.W. 208

EVA McQUEEN, Plaintiff and respondent, v. BANK OF EDGEMONT,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Fall River County, SD

Hon. Levi McGee, Judge

Affirmed

A. J. Kellar, Chauncey E. Wood

Attorneys for appellant.

Eastman & Dudley

Attorneys for respondent.

Opinion filed April 3, 1906

CORSON, J.

This is an action in claim and delivery. Verdict and judgment being in favor of the plaintiff the defendant has appealed.

The defendant seeks a reversal of the judgment upon three grounds: 1) That the plaintiff was estopped from asserting her claim to the property in controversy by reason of her acts and conduct in reference thereto; (2) that the court erred in the admission of evidence on the part of the plaintiff; (3) that the court erred in excluding evidence on the part of the defendant; (4) that the verdict is against law. The complaint is in the usual form alleging that plaintiff was the owner of certain live stock consisting of horses and cattle and that the same were unlawfully detained by the defendant. The defendant denied that the plaintiff was the owner of the live stock described in the complaint and then alleges that in November, 1901, it loaned to McQueen & Barger, co-partners, the first of whom was the husband of the plaintiff, the sum of $2,400, which loan was secured by note and mortgage executed by the said McQueen & Barger upon a number of cattle and horses in Fall River county, being branded in a similar manner to the property in controversy; that in November, 1902, the said note and mortgage not having been paid were renewed by a new note and mortgage upon the same property with the knowledge of the plaintiff, and that said note and mortgage not having been paid the mortgage was foreclosed in January, 1904, and the property or so much of it as could then be found sold thereunder as provided by law, and the proceeds, amounting to $1,800, applied in part payment of said note and mortgage.

It is contended by the respondent that the defendant is not in position to avail itself of an estoppel on the part of the plaintiff for the reason that it has not pleaded the same as a defense to the action. We are inclined to take the view that this contention of the respondent is correct and that the defendant not having weaned an estoppel either in its original answer or by amendment thereto, it is now precluded from availing itself of any such defense even had the evidence in the case established such a defense. The rule seems to be quite uniform that an estoppel to be available to a party must be pleaded when the party has an opportunity to do so. State ex rel. Kansas City v. East Fifth Street Railway Co., 140 Mo. 539, 38 LRA 218; Erickson v. First National Bank, 44 Neb. 622, 28 LRA 577; City of Delphi v. Startzman, 104 Ind. 343, 3 N.E. 937; Guild v. Richardson, 6 Pick. 364; Gill v. Rice, 13 Wis. 549; Eikenberry v. Edwards, 67 Iowa, 619, 25 N.W. 832; Henderson v. Keutzer, 56 Neb. 460, 76 N.W. 881. The contention of the appellant that it pleaded the facts constituting an estoppel is not tenable. As will be noticed the only fact pleaded tending in any manner to constitute an estoppel is that the property in controversy was included in the mortgage with the knowledge of the plaintiff. This is not sufficient to constitute an estoppel. This court in Sutton v. Consolidated Apex Mining Co., 1021 discussing the subject of estoppel uses the following language:

“In order to constitute an estoppel it is not sufficient to show that the language, acts, or conduct of one might have misled a party to his prejudice; but it must affirmatively appeal that such party was in fact misled or induced by such acts ,conduct, or language to do something that he would not otherwise have done except for such acts, language, or conduct.”

It will be observed that the answer in this case falls very far short of stating facts necessary to constitute an estoppel as it is there defined and in the case at bar it is extremely doubtful if the plaintiff would have been estopped even had an estoppel been properly pleaded in the answer as the most that can be claimed for the evidence is that the plaintiff knew that her husband and partner were borrowing money from the bank, and securing the same by a chattel mortgage on property having the same or a similar brand to her own, and that the stock so owned by her ran with the stock on the range mortgaged by her husband and partner, but it does not affirmatively appear that she knew that they were including her stock in the mortgage, or that as a fact her stock was included. Her knowledge therefore that her husband and partner were mortgaging...