Benjamin v. Huston

Citations

• 16 S.D. 569
• 94 N.W. 584
• 1903 S.D. LEXIS 127

Syllabus

<p>1. Horses having been taken from plaintiff on execution against another, he brought claim and delivery against the sheriff, who subsequently sold the property under the execution. The purchaser under such sale arranged with plaintiff that the latter should pasture the horses, and the horses were being pastured by plaintiff at the time the claim and delivery action was tried. Held, that plaintiff, being shown to he the owner, whs entitled to a judgment not only for damages and costs, but that he “recover possession;” his possession of the horses at the time of trial being merely a qualified one as agister.</p> <p>2. Plaintiff being entitled to the unqualified possession, the fact that plaintiff, while the horses were in his possession as agister, leased them from one who had purchased them from the sheriff, did not render the judgment that he recover possession of them erroneous.</p> <p>3. In a claim and delivery action for the recovery of horses, the value of the property was properly determined as of the time of the taking.</p> <p>4. An instruction that the damages should be found as of the “time of the commencement of the action” was not erroneous, there not having been more than two weeks’ difference between the time of the taking and the commencement of the action, and there being no claim that the value had fluctuated during such interval.</p> <p>5. In claim and delivery for horses, evidence as to the value of the use of the property from the time of the taking until the trial was properly admitted.</p> <p>6. Where there was ample evidence and proof of value of the use of the property taken during the time of its detention, erroneous admission of certain evidence on the question of value could not constitute reversible error.</p>