Slimmer v. Meade County Bank
| Decision Date | 16 February 1917 |
| Docket Number | 3998 |
| Citation | 38 S.D. 311,161 N.W. 325 |
| Court | South Dakota Supreme Court |
| Parties | ABRAHAM SLIMMER and Lane J. Thomas, dba Slimmer & Thomas, Plaintiffs and respondents, v. MEADE COUNTY BANK OF STURGIS and J. A. Wingfield, Public Examiner of the State of South Dakota, Defendants and Appellants. |
MEADE COUNTY BANK OF STURGIS and J. A. Wingfield, Public Examiner of the State of South Dakota, Defendants and Appellants. South Dakota Supreme Court Appeal from Circuit Court, Meade County, SD Hon. Carl G. Sherwood, Judge #3998—Affirmed Charles D. Howe, W. G. Rice Attorneys for Appellants. Harry P. Atwater, Percy Helm Attorneys for Respondent. Opinion filed February 16, 1917, Rehearing denied May 5, 1917 (See 34 SD 147, 147 N.W. 734)
This action was instituted by plaintiffs, as mortgagees, to recover the value of certain mortgaged cattle alleged to have been wrongfully sold and the proceeds thereof converted to their own use by defendants. The action was tried before the court without a jury, by consent of parties, and findings and judgment were in favor of plaintiffs, and defendants appeal. The vital question to be determined is which of the parties, plaintiffs or defendants, are entitled to the money proceeds arising from the sale by defendant Meade County Bank of certain cattle covered by two certain mortgages, one owned by plaintiffs and the other owned by said defendant bank. From the evidence and findings of fact it appears that on the 5th day of October, 1908, one English, as mortgagor, mortgaged to the St. Paul Cattle Loan Company 569 head of cattle and 50 head of horses, situated in Butte county, wherein said mortgagor resided, to secure the payment of $10,200, due on the 25th day of November, two, and which mortgage was duly filed on the 12th day of October, 1908. On the 21st day of October, 1909, the said English mortgaged to plaintiffs 569 and, 274 head of cattle and 5o head of horses, situated in Butte county, to secure the payment of $6,232.90, due October 21, 1910, and which mortgage was duly filed on the 23rd day of October, 1909. On the 25th day of November, 1910, the said English mortgaged to the defendant Meade County Bank 227 head of cattle, covered by the two preceding chattel mortgages, to secure the sum of $5,200, that day loaned to said, English by said defendant bank, which chattel mortgage was duly filed on the 29th day of November, 1910. At the time this third mortgage was made there was still due and unpaid on the said first mortgage indebtedness to the said St. Paul Cattle Loan, Company the sum of $3,528.37, which amount was paid from the loan made to English by the defendant bank, and thereupon, on the 29th day of November, 1910, the said St. Paul Cattle Loan Company duly filed a satisfaction of said first mortgage, and upon the filing of said satisfaction the original first mortgage was delivered to said English, said mortgagor. On the 10th day of June, 1911, the said English executed and delivered to said Meade County Bank an instrument in writing, authorizing and empowering said defendant bank to take possession of and at private sale sell and dispose of all the personal property covered by its said mortgage, and that thereafter during the month of August, 1911, the said defendant bank took into its possession the said cattle covered by its said mortgage, and sold and converted the same to its own use, and that the value of said cattle so sold and converted was then and there the sum of $2,028. In the month of December, 1911, and while said $2,028.00, proceeds of said mortgaged cattle was still unaccounted for to plaintiffs by said defendant bank, the said defendant bank became insolvent and was taken possession of, under, and by virtue of the laws of the state of South Dakota, by the defendant Wingfield, as public hank examiner, for the purpose of closing up and liquidating the affairs of said hank. At the time of the trial of this action there was still due and unpaid on the indebtedness secured by plaintiffs' mortgage the sum of $2,898.
On the 25th day of November, 1910, at the time said English procured said loan from defendant bank, he had in his possession and presented to said bank the following letter signed by plaintiffs:
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