Pitts Agricultural Works v. Young

• Decision Date: 23 February 1895
• Citation: 62 N.W. 432,6 S.D. 557
• Parties: PITTS AGRICULTURAL WORKS v. YOUNG.
• Court: South Dakota Supreme Court

6 S.D. 557

62 N.W. 432

PITTS AGRICULTURAL WORKS

v.YOUNG.

Supreme Court of South Dakota.

Feb. 23, 1895.

Syllabus by the Court.

1. The general denial in actions of claim and delivery under the Code puts in issue not only the unlawful detention of the property by the defendant, but also the title and right of possession in the plaintiff; and under it the defendant may not only show that the plaintiff has no title or right to the possession, but, by way of establishing that fact, may prove title in himself or in a stranger. And, for the purpose of showing that he did not unlawfully detain the property, the defendant, under such denial, may prove that some other person was in the possession and held the same at the commencement of the action.

2. When, however, the property is taken by the officer under his process, the presumption is that it was taken from the possession of the defendant, and this presumption can only be overcome by evidence on the part of the defendant that he did not have the possession at the commencement of the action.

3. A verdict of a jury finding all the issues in favor of the defendant will ordinarily be construed with reference to this presumption, and not as finding that the defendant was not in possession of the property at the commencement of the action.

4. The rule seems to be well settled that when the defendant pleads property in himself or in a stranger, or he traverses the plaintiff's right to the possession, if he prevails in the action he will be entitled to a judgment for the return of the property, or its value in case a return cannot be had.

5. When a general objection is made at the trial to evidence offered that might have been obviated at the time had a specific objection been made to it, such a general objection will not be considered by this court on appeal.

Appeal from circuit court, Marshall county; A. W. Campbell, Judge.

Action by the Pitts Agricultural Works against Robert Young. Judgment for defendant, and plaintiff appeals. Affirmed.Turner & McCoy, for appellant. A. Sherin and James Wells, for respondent.

CORSON, P. J.

The plaintiff instituted this action to recover possession of about 1,400 bushels of grain, claimed by the plaintiff to have been mortgaged to him by the terms of a chattel mortgage executed by the defendant. The plaintiff in his complaint set out the substance of the said chattel mortgage, and alleged that it was due and unpaid, and concludes as follows: “That said property, and the whole thereof, and the possession thereof, is wrongfully detained from plaintiff by defendant, and that plaintiff has demanded, and caused to be demanded, of defendant the possession thereof, but that defendant has always hitherto neglected and refused, and now neglects and refuses, to deliver the same, or any part thereof, to plaintiff. Therefore plaintiff demands judgment against the defendant for the immediate return and possession of said property, or the sum of $950, the value thereof, in case a delivery cannot be had, and for the costs and disbursements of this action.” The answer of defendant is as follows: “The defendant denies each and every allegation, matter, fact, and thing in said complaint contained, except as hereinafter admitted. The defendant admits the making of the notes and chattel mortgage as alleged in said complaint. The defendant specifically denies that he is the owner of any of the grain of any kind that was raised and harvested on the said N. E. 1/4 of section 29-128-57 during the year 1892, or that he is the owner or in possession of said land, but that one Daisy Young is the owner of and entitled to the possession of said crop so raised during the year 1892, and that she is in possession of said land by virtue of a lease; that all the property taken by the sheriff in this action is the property of said Daisy Young, and not the property of this defendant. Wherefore defendant demands judgment against plaintiff for the immediate possession and return of the property above described, or for the sum of $925, the value thereof, in case a delivery cannot be had, besides costs and disbursements of this action.” A trial was had before a jury, which found the following verdict: “We, the jury, duly impaneled and sworn to try the issues in this action, find for the defendant upon all the issues; that the defendant is entitled to the possession of the property described in the complaint; and that the property is of the value of $576.74,”-upon which the following judgment was rendered: “It is adjudged that the defendant recover of the plaintiff the possession of the personal property described in the complaint, or $576.74, the value thereof, in case a delivery of said property cannot be had, and $38.30, costs to be taxed and inserted in this judgment by the clerk of the court.” The property was taken by the plaintiff, and not redelivered to the defendant.

The learned counsel for the appellant contend that the judgment in this case should be reversed upon the following grounds: (1) That the defendant, by his general denial, put in issue his possession of the property at the commencement of the action, and the jury, having found all the issues in favor of the defendant, necessarily found that he was not in possession when the action was commenced, and he was not therefore entitled to a return of the property. (2) For the reason that the defendant did not by his pleading or evidence connect himself with the title or right to the possession of the property, and hence did not show himself entitled to a return of the same.

The general denial under the Code puts in issue, not merely the unlawful detention of the property by the defendant, but also the title and right to the possession of the plaintiff; and under it the defendant may not only show that the plaintiff has no title or right to the possession, but, by way of establishing that fact, he may prove title in himself or in a stranger; and, for the purpose of showing that he does not unjustly or unlawfully detain the property, the defendant, under such general denial, may prove that the property was in the possession of some other person at the time the action was commenced. Timp v. Dockham, 32 Wis. 146;Kennedy v. Shaw, 38 Ind. 474;Griffin v. Railroad Co., 101 N. Y. 348, 4 N. E. 740;Hinchman v. Doak, 48 Mich. 168, 12 N. W. 39. But, when the property is taken by the officer under his process, the presumption is that it was taken from the possession of the defendant. Timp v. Dockham, supra. This presumption can only be overcome by evidence on the part of the defendant that he did not have such possession at the commencement of the action. Hinchman v. Doak, supra; Timp v. Dockham, supra; Willis v. De Witt (S. D.) 52 N. W. 1090. In the case at bar we find no evidence that overcomes the presumption above stated. The verdict of the jury, finding all the issues in favor of the defendant, is not inconsistent with this presumption, and the further finding that the defendant was entitled to the possession conclusively establishes the fact that he was so in possession at the commencement of the action. Ordinarily, a verdict of a jury finding all the issues in favor of the defendant will be construed with reference to the presumption above stated, and not as finding that the defendant was not in possession at the commencement of the action, unless that was made a distinct issue in the case by the evidence on the part of the defendant, and clearly established by such evidence. Hinchman v. Doak, supra. And such seem to be the views of the profession and practice of the courts of this state. Appellant's first position, therefore, in our view of the case, is not well taken, and could not be sustained even had the jury omitted to find that the defendant was entitled to the possession.

The second proposition of counsel is equally untenable. The rule of law has long been settled that when the defendant pleads property in himself or a stranger, or traverses the plaintiff's right to the possession, if he prevails in the action he will be entitled to a return of the property, or its value in case a return cannot be had. In the action of claim and delivery both parties are actors. The plaintiff seeks a recovery on the ground that he is entitled to the possession, and the defendant seeks ordinarily to defeat the action and maintain his possession on the ground that the plaintiff has no right to such possession. When, therefore, the defendant prevails in the action, and the property has been taken from him under the process, he is clearly entitled to its return, or its value in case a return cannot be had. The reasons why a return in such case should be adjudged are thus clearly stated by Chief Justice...