Wright v. Sherman

Citations

• 3 S.D. 290
• 17 L.R.A. 792
• 52 N.W. 1093
• 1892 S.D. LEXIS 70

Syllabus

<p>1. Where a conrplaiut does not state a cause of action, for the reason that some essential fact is pleaded only by way of exhibit, and defendant does not demur, but upon the trial allows the plaintiff, without objection, to introduce evidence to prove such fact, he cannot in this court for the first time take advantage of the defect in the complaint.</p> <p>2. The lien of a chattel mortgage properly filed is paramount to that of an agister for subsequently pasturing the mortgaged stock, unless it is shown that the mortgagee consented, either expressly or impliedly, that such stock might be so pastured and subjected to such lien.</p> <p>3. While such consent may be shown by circumstances, the fact that the mortgagor retains possession of the mortgaged property is not of itself proof of such consent.</p> <p>(Syllabus by the Uourt.</p>