Morris v. Hubbard

• Citation: 86 N.W. 25,14 S.D. 525
• Parties: MORRIS v. HUBBARD, Sheriff.
• Decision Date: 04 May 1901
• Court: South Dakota Supreme Court

86 N.W. 25

14 S.D. 525

MORRIS v. HUBBARD, Sheriff.

Supreme Court of South Dakota

May 4, 1901

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 in favor of plaintiff defendant appeals. Affirmed.

Keith & Warren, for appellant. Aikens & Judge, for respondent.

HANEY J.

It is alleged in the complaint that plaintiff is the owner and entitled to the immediate possession of certain described personal property, by virtue of having a special ownership therein, arising as hereafter alleged: That on September 7 1894, at Wichita, Kan., J. E. Bruce, Jr., and W. L. Bruce partners as Bruce Bros., executed and delivered to plaintiff the following instrument in writing: "Know all men by these presents that we, the undersigned, J. E. Bruce, Jr. and W. L. Bruce, partners as Bruce Brothers, in consideration of the sum of $929.08, have this day sold to John S. Morris the following described personal property, now situated at Sedgwick county, Kansas, to wit: ***. And the said Bruce Brothers hereby guaranty that, at the delivery of this bill of sale, they are the owners of said property, free and clear of all incumbrances whatever, and that they will warrant and defend the same in the peaceable possession of the said John S. Morris. In witness whereof the said grantors have hereunto set their hands this 7th day of September, A. D. 1894. [ Signed] Bruce Brothers, by W. J. Bruce, Their Attorney in Fact. W. J. Bruce." That on the same day, at the same place, and as a part of the same transaction, the plaintiff made and entered into the following agreement with Bruce Bros. and W. J. Bruce: "This agreement, entered into this 7th day of September, 1894, between John S. Morris, party of the first part, and J. E. Bruce, Jr., and W. L. Bruce, partners as Bruce Brothers, and W. J. Bruce, parties of the second part, witnesseth: That whereas, the said Bruce Brothers have this day executed to the said John S. Morris a bill of sale for the following described personal property, to wit: ***. And whereas, the said bill of sale was executed to said John S. Morris to secure the payment of a loan for the sum of nine hundred twenty-nine and 8/100 dollars, this day furnished the said Bruce Brothers by the said John S. Morris: Now, therefore, it is agreed, by and between the parties hereto, that the said personal property shall be held as security for the repayment of the said money as hereinafter provided, said sum of money to bear interest from this date at the rate of 12 per cent. per annum, and to be paid on or before one year from the date thereof; provided, however, that the said Bruce Brothers may at any time pay a part of said sum of $929.08, and interest thereafter shall only be charged and collected upon the amount remaining unpaid from the date of such payments, and payments of not less than $25 may be made at any time upon these conditions. Upon the payment of the full sum of $929.08, with interest at the rate of 12 per cent. per annum, as above provided, the said John S. Morris shall return to the said Bruce Brothers, their agents or their assigns, all of the above-described personal property, but the said Morris is not to be held responsible for any accidents or abuse of said animals, or the death of any or all of them. 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 1894-95, in the name of 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 the death or the sickness of the said 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 this 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 1894-95 shall be paid by the said Bruce Brothers, or advanced by the 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 the said horses shall belong to the said Bruce Brothers, but shall be applied upon the said sum due the said John S. Morris. In witness whereof the said parties hereto have set their hands and seals this 7th day of September, 1894. [ Signed] John S. Morris. Bruce. Bros., by W. J. Bruce, Their Attorney in Fact. W. J. Bruce." That plaintiff, on said 7th day of September, 1894, at the place aforesaid, took immediate possession of all the personal property described in the aforesaid bill of sale and agreement, and plaintiff has ever since continued in the actual possession of said personal property, except that portion thereof which was unlawfully, and against the consent of the plaintiff, taken from his possession on or about August 26, 1895; that the personal property so taken from plaintiff's possession is of the value of $2,000; that before this action was commenced plaintiff demanded the possession of said personal property from the defendant, and the defendant refused to deliver the same to plaintiff; that the defendant is the acting sheriff of the county of Minnehaha, state of South Dakota; that the debt to secure which said mortgage was given is due and unpaid, and the amount due under said mortgage is $3,000. The answer contains a general denial, and alleges justification under an execution issued out of the circuit court upon a judgment in favor of W. H. H. Beadle against Bruce Bros. and W. J. Bruce. The jury found all the issues in favor of the plaintiff; found that he is entitled to the immediate possession of the personal property described in the complaint, by virtue of special ownership therein, as alleged in the complaint; that the value of such personal property is $2,550, and that the value of plaintiff's interest therein is $1,555.41. Judgment was rendered accordingly, a new trial was denied, and defendant appealed.

When the bill of sale and contract set out in the complaint were executed, the property mentioned therein was at Wichita Kan., in possession of W. J. Bruce, and mortgaged to one Stanley. The Stanley mortgage was satisfied with the proceeds of the loan from plaintiff, and the property, consisting principally of race horses, was taken to the plaintiff's ranch in the Indian Territory, known as the "Cherokee Stock Farm," where the horses were kept until the beginning of the following racing season, when a portion of them were shipped to various Western cities, where they were entered in races in the name of the Cherokee Stock Farm. Subsequently they were taken to Sioux Falls, without plaintiff's knowledge or consent, and were there seized by the defendant, as sheriff, under an execution issued out of the circuit court on a judgment in favor of W. H. H. Beadle against Bruce Bros. and W. J. Bruce. It is conceded that the conveyance to plaintiff was intended to operate as a mortgage of personal property, and that under the law of Kansas it is absolutely void as against the creditors of the mortgagors, unless it was accompanied by an immediate delivery, and followed by an actual and continued change of possession of the property mortgaged. Under the charge of the court below, the jury necessarily found that the mortgaged property was owned by Bruce Bros., and that there was an immediate delivery, followed by an actual and...