Morris v. Hubbard

• Decision Date: 09 November 1897
• Citation: 72 N.W. 894,10 S.D. 259
• Parties: MORRIS v. HUBBARD, Sheriff.
• Court: South Dakota Supreme Court

10 S.D. 259

72 N.W. 894

MORRIS

v.HUBBARD, Sheriff.

Supreme Court of South Dakota.

Nov. 9, 1897.

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

Action by John S. Morris against Chelsea W. Hubbard, as sheriff of Minnehaha county. From a judgment for plaintiff, defendant appeals. Reversed.Hosmer H. Keith, for appellant. Powers & Carland, for respondent.

HANEY, J.

In September, 1894, J. E. Bruce, Jr., and W. L. Bruce, co-partners as Bruce Bros., at Wichita, Kan., gave plaintiff a bill of sale whereby they conveyed to him certain race horses and other personal property, and guarantied they were the owners thereof, and that the same were free and clear of any incumbrance. It was signed Bruce Bros., by W. J. Bruce, their attorney in fact, and W. J. Bruce. At the same time, and as part of the same transaction, plaintiff, Bruce Bros., and W. J. Bruce entered into a written contract wherein it is agreed that the bill of sale was executed to secure the repayment of a loan of $929.08 furnished Bruce Bros. by the plaintiff; that the personal property therein described shall be held as security for the repayment of such loan, the sum so loaned to bear interest from date at the rate of 12 per cent. per annum, and to be paid on or before one year from the date thereof; that upon repayment of the loan, with interest, plaintiff shall return all of the property to Bruce Bros. “It is further agreed that such of the horses above mentioned as shall be deemed desirable and suitable for that purpose, and shall be mutually agreed upon by the said John S. Morris and W. J. Bruce, shall be entered upon such circuits, courses, and race tracks as the said parties may agree upon, for the seasons of 1894-1895, in the name of the ‘The Cherokee Stock Farm’; the said W. J. Bruce to have the entire charge and management of the said horses upon the circuits, courses, and race tracks so entered, or, in the case of death or sickness of W. J. Bruce, by some competent trainer to be selected by the said Morris. It is further agreed that until payment of said sum of money and interest, and the termination of the agreement, all of said horses shall be kept upon the said Cherokee Stock Farm. near the town of Caney, Kansas; the said W. J. Bruce, however, to have the charge and management of said property upon said stock farm. The entrance fee in all races for the seasons of 1894-1895 shall be paid by the said Bruce Brothers, or advanced by said Cherokee Stock Farm, and taken out of the purses, or refunded by Bruce Brothers, and any sum advanced in this way, or to reinstate, shall constitute a lien upon said stock, until repaid; and all purses and premiums earned by said horses shall belong to the said Bruce Brothers, but shall be applied upon the said sum due the said John S. Morris.” This contract was signed in the same manner as the bill of sale. It is alleged and proved that the statutes of Kansas (Gen. St. c. 68) contain the following provisions:

“Sec. 9. Every mortgage, or conveyance intended to operate as a mortgage, of personal property, which shall not be accompanied by immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasersand mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited in the office...