McKay v. Shotwell

6 Dakota 124

Opinion

By the Court :

The judgment of the district court is affirmed for the following reasons:

1. By section 1733, O. C., a mortgage does not entitle the mortgagee to the possession of the property unless authorized by the express terms of the mortgage.

2. Section 1704 provides that an agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence.

3. The mortgage does not contain any provision allowing the mortgagors to dispose of the goods and apply the proceeds, or any part thereof, to their own use.

4. If the language of the mortgage fairly implies any right of the mortgagors to sell, it could only be by the terms of the mortgage for the purpose of buying goods to replenish the stock.

5. There was no evidence tending to show that after the execution of the mortgage the mortgagors sold any of the stock with the knowledge or assent of the mortgagee, or applied any proceeds to their own use.

6. The mortgage was not fraudulent in law, and there being no evidence tending to show that it was fraudulent in fact, it was not error for the trial court to direct a verdict for the plaintiff.

7. The testimony excluded is not deemed material, and there was, therefore, no error in the ruling of the court below.

All concur, except McConnell and Garland, JJ., not sitting.