First National Bank v. North

Citations

• 2 S.D. 480
• 51 N.W. 96

Syllabus

<p>1. Appellant, as sheriff, attached a stock of goods which he found in the peaceable possession of respondent. Respondent brought action against appellant for such taking, alleging in its complaint such prior peaceable possession, and that the taking bj appellant was wrongful; and further alleging that it had taken such possession by virtue of a chattel mortgage executed to it by the then owners of the goods, who were the attachment debtors. Held, that such complaint stated a cause of action as against an attaching creditor, without affirmatively showing any default in the mortgage which would entitle the mortgagee to so take possession.</p> <p>2. In such ease the justifiableness of the possession was a matter between the mortgagor and mortgagee, and an attaching creditor could not prevent the restoration of the goods to respondent by showing an unasserted right to possession in the mortgagor.</p> <p>3. The chattel mortgage ran to “The First National Bank.” Held, there was no error in allowing parol evidence to show that “The First National Bank of Canton” was the mortgagee.</p> <p>4. Where a tender of evidence is made to prove certain facts, some of which are admissible and others inadmissible; the offer is properly rejected a's a whole.</p> <p>5. To entitle one to recover damages for false representations, it must appear not only that he believed them to be true, but that he acted upon the faith of such representations, and that injury resulted.</p> <p>6. Fraud cannot be predicated upon any disposition a debtor may make of his exempt goods, for they are not the subject of fraudulent transfer. As respects creditors, they are not assets.</p> <p>8. The law of this state allowing a debtor to prefer creditors, an agreement that such debtor shall execute a chattel mortgage upon his entire stock of goods, but reserving the right to withdraw a certain amount of such goods to be turned over to another creditor in payment of a claim conceded to bo just, is not fraudulent