First National Bank v. Calkins

Citations

• 12 S.D. 411
• 81 N.W. 732
• 1900 S.D. LEXIS 49

Syllabus

<p>1. A purchaser of a herd of horses mortgaged them to plaintiff to secure a bona fide loan, and before the mortgage was recorded the seller brought suit to set aside the sale for incapacity on his part, etc., but, before judgment was entered therein in his favor, plaintiff, which was not a party to that suit, foreclosed the mortgage, and purchased the horses, of Iwhieh the seller took possession. Held, in an action by the mortgagee to recover the horses, that the judgment roll in the previous action to set aside the sale was admissible.</p> <p>2. Where the seller of a herd of horses was required by a judgment setting aside the sale for his incapacity to pay the purchaser a certain sum, but the purchaser had disposed of a portion of the herd, the value of which was greater than the sum the seller was required to pay him, the seller will not be required to make any further payment on account of such judgment.</p> <p>3. The fact that a mortgagor of chattels knowingly allowed the mortgagee to sell and convert to his own use a portion thereof does not necessarily render the mortgage void as to creditors or incumbrancers in good faith, since the question of fraudulent intent is one of fact for the jury.</p>