First National Bank of Canton v. Baldridge

POLLEY, P. J. Defendant foreclosed a chattel mortgage on ■certain personal property. Plaintiff, having a prior chattel niort-gage on .part of the same property, brought this action against defendant to recover for the alleged conversion of the property ■covered by plaintiff’s mortgage. At the close of defendant’s evidence, the court, on plaintiff’s motion, struck out all of defendant’s evidence relative to its two mortgages. Both parties then moved for a directed verdict. Plaintiff’s motion was granted, and from the judgment entered upon the verdict so rendered, and from an order denying appellant’s motion for a new trial, defendant appeals. [1] Defendant contends the court erred in granting plaintiff’s motion to strike out defendant’s evidence and in directing .a verdict for plaintiff. Plaintiff’s mortgage was executed in Lincoln county on the 28th day of March, 1908, and was filed with the register of deeds in Kingsbury county on -the 30th day of that month. At the time plaintiff’s mortgage was executed, the mortgaged property, consisting of three horses, three colts, and certain farm machinery, was loaded into a car at Canton, in Lincoln county, billed to Iroquois, in Kingsbury county, where it was to-be used on a farm that had been rented 'by the mortgagor (Herman, by name) five miles south of Iroquois. Said property reached Iroquois on the evening of March 29th and was immediately taken out to the said farm. At that time there was no barn or stable on said farm in which said horses and colts could be sheltered, and they were taken to' a farm just across the road from the I-Ierman farm, which was also across the county line in Beadle county. The colts were kept on this farm for several months. The -hordes were kept there during the nighttime until sheds could be erected on the Herman place, but were worked- on the Herman place -during the daytime. Defendant’s mortgage was executed on the 4th dlay of April, five days after plaintiff’s mortgage had been filed in Kingsbury county. Under these facts (none of which were disputed by defendant) we hold that defendant had constructive notice of plaintiff’s mortgage at [608] the time of the execution of defendant's mortgage. Under the provisions of section 2087, Civ. Code, property mortgaged while in transit to the residence of -the mortgagor or to the place where it is to be used is, during a reasonable time for transportation, considered too be in, the county in which the mortgagor resides or where said property is to be used. There was no unusual or unnecessary delay in getting the said horses to the Herman, farm in Kingsbury county. While it is true they were kept in a ¡barn across the county line during- the nigh'tiime, they were worked on the Herman place during the daytime. This condition, however, did not last long, for, as soon as sheds for that purpose could be erected, said horses were kept on the Herman .place all the time. Plaintiff’s mortgage described said property as 'being in Kingsbury county. An investigaton of the facts at the time defendant’s mortgage was executed would have shown that these horses were being worked in Kingsbury county, and an examination of the records in Kingsbury county any time after the 30th day of March would have shown that the horses were mortgaged to the plaintiff. Under these facts, plaintiff’s mortgage was prior in. time and superior in right to defendant’s mortgage. [2] It is not claimed that plaintiff’s mortgage has ever been paid, and it is admitted that the defendant seized ancl sold said horses andl applied the proceeds thereof on its mortgage. Under the law, this amounted to a conversion, and plaintiff would have been entitled to recover, even though defendant’s evidence had not been stricken out, or a verdict directed for plaintiff. The judgment and order appealed from are affirmed.