Studebaker Bros. Mfg. Co. v. Zollars

• Decision Date: 20 December 1899
• Citation: 81 N.W. 292,12 S.D. 296
• Parties: STUDEBAKER BROS. MFG. CO. v. ZOLLARS, Sheriff, et al.
• Court: South Dakota Supreme Court

81 N.W. 292

12 S.D. 296

STUDEBAKER BROS. MFG. CO. v. ZOLLARS, Sheriff, et al.

Supreme Court of South Dakota

December 20, 1899

Appeal from circuit court, Custer county; William Gardner, Judge.

Action by the Studebaker Bros. Manufacturing Company, a corporation against Lafayette Zollars, as sheriff, and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Charles W. Brown and Fowler & Whitfield, for appellants. Wood & Buell, for respondent.

CORSON P. J.

This action was brought by the plaintiff, who was a judgment creditor of Alemeth E. Overpeck and Areli L. Overpeck co-partners doing business as Overpeck Bros., against Lafayette Zollars, as sheriff of Pennington county, and his sureties, to recover damages for the failure of said Zollars as sheriff, to levy certain executions in favor of the said plaintiff and against the said Overpeck Brothers upon their personal property. The sheriff justified his refusal in levying the said executions by alleging, in substance, that the personal property upon which he was directed to levy had been previously mortgaged for a valuable consideration by the said Overpeck Brothers to one Hollis J. Tyler, of the county of Ontario, in the state of New York. A trial was had before the circuit judge and a jury. A verdict and judgment were rendered in favor of the plaintiff for $6,682.39, together with costs and disbursements, from which judgment and order denying a motion for a new trial the defendants appeal to this court.

On the trial the defendants introduced evidence tending to show that Hollis J. Tyler had at various times during several years prior to 1887 advanced to Overpeck Bros., as loans, sums amounting to about $8,000, and that in November, 1893, there was due to Tyler from Overpeck Bros. on account of said loans about the last-mentioned sum, and that to secure said amount the Overpeck Brothers executed and delivered, on the last-mentioned date, to said Tyler, a chattel mortgage upon all the personal property upon which said Zollars was directed by the plaintiff to levy its execution; that said chattel mortgage was duly filed for record, and was a valid subsisting, and unsatisfied mortgage at the time he, said Zollars, was directed to levy upon the said property. The learned court, in its charge to the jury, gave the following instruction: "The only remaining question is this: Was the mortgage executed by Overpeck Bros. to their father-in-law, Tyler, a valid mortgage at the time of the levy of the execution in the case of the Studebaker Bros Manufacturing Company against Overpeck Bros.? And likewise you shall find whether or not it was a valid and subsisting mortgage at the date of refusal of the sheriff to levy upon the second execution, there being two judgments in favor of the Studebaker Bros. Manufacturing Company and against Overpeck Bros. The plaintiff relies upon circumstances tending to show the fact, or possible fact, that the mortgage given by the Overpeck Brothers to their father-in-law, Tyler, was not given for a valid and subsisting obligation. I instruct you that upon this you are the sole judges of all the facts before you as to whether or not, as a valid and subsisting debt, it existed at the time of the execution of the Overpeck Brothers' mortgage to Tyler. If said debt existed, they had the right to prefer their father-in-law, or any other creditor, to all other creditors they may have had, if they so desired. If they owed their father-in-law $8,000 at the date of the execution of the mortgage, it is good as against the world and as against this plaintiff. This is the question: Was the mortgage given for a bona fide, good-faith indebtedness, or in fraud of other creditors? If you find it was given in fraud, it is invalid, and must be so determined in this action. If you find that it was given in good faith, it was a first lien upon this property; and the sheriff had not only the right, but it was his duty, to decline to proceed under the levy, and your verdict will be for the defendants." It is contended by the appellants that this instruction is misleading and erroneous, in that it, in effect, permits and directs the jury to find the mortgage invalid if given by the mortgagors with fraudulent intent, although such intent was not participated in or known to the mortgagee. We cannot agree with appellants in their contention. The learned circuit court very properly stated to the jury the question to be determined by them as follows: "If said debt existed, they had the right to prefer their father-in-law, or any other creditor, to all other creditors they may have had, if they so desired. If they owed their father-in-law $8,000 at the date of the execution...