Greeley v. Winsor

Citations

• 1 S.D. 117
• 45 N.W. 325
• 1890 S.D. LEXIS 15

Syllabus

<p>1. A written lease contained the following provision: “That said rents, whether due or to become due, shall be a perpetual lien on any ancf all goods, merchandise, furniture and fixtures now contained, or which may at any time during- the continuance of this lease be contained, in the building except such goods as are sold in the usual course of retail trade;” Tlie lease was executed a.nd filed as required by the law concerning’ chattel mortgages. Held, that such provision constituted, and must be treated as, a chattel mortgage.</p> <p>2. The clause “except such goods as are sold in the usual course of retail trade,” was an implied permission to the mortgagor to make such sales; and, ther’e being nothing in the lease indicating any appropriation or intent to appropriate the proceeds of sales to any other purpose, it was permission to the mortgagor to sell such goods, being a part of the mortgaged property, for his own benefit, and is at least presumptively fraudulent as to creditors of the mortgagor; CORSON, P. J., expressing the opinion that it should bo held conclusively so.</p> <p>3. Such mortgage, being presumptively fraudulent as to a portion of the property, therein described, is presumpl ivoly invalid as to all. So held, where a portion of the property, “furniture and fixtures,” was not included in the power of sale.</p> <p>(Syllabus by the court.</p> <p>Reporter: A rehearing was granted in this case, and in the opinion filed upon rehearing the court affirmed the foregoing opinion.</p>