Action to recover price of wheat, alleged to have been con- verted by defendant. Judgment for plaintiff. Defendant ap- peals. Affirmed.
Mr. Davis, for the appellant, cited no authorities.
Rourke & Allen and Goodwin & Van Pelt, for respondents:
On the point that plaintiff did not allege facts to show that at the time of the commencement of the action plaintiff was entitled to the possession of the mortgaged property: Everett v. Buchanan, 2 Dak. 249, 268; Brewing Company v. Elevator Co., 5 Dak. 62; Nichols v. Barnes, 3 Dak. 148; Bank v. Elevator Co. 43 N. W. Rep. 806; Macbine Co. v. Campbell, 13 Pac. Rep. 324; Oampbell v. Quackenbush, 33 Mich. 287; Lainy v. Perrott, 12 N. W. Rep. 192. A stipulation in a chattel mortgage that the mortgagor shall remain in possession until breach of condition, is personal to the mortgagor and cannot be assigned or transferred. The mortgagee is therefore not precluded from bringing trover for the property, before or after breach of condition, against a purchaser from the mortgagor. Ballune v. Wallace, 2 Rich. (S. C.) 80; McCandless v. Moore, 50 Mo. 511.
The opinion of the court was delivered by
WALLIN, J. This action is to recover the value of certain wheat, which the plaintiffs allege that the defendant has unlawfully converted. Plaintiffs base their right of recovery upon a certain chattel mortgage covering the wheat, a copy of which is annexed to the complaint, and made a part thereof. The complaint contains all necessary averments to show the plaintiffs' right of recovery, and is in no respect criticised, except as to that part thereof which has reference to the rights of the mortgagees upon a default. The conditions of the mortgage are as follows: "And it is hereby agreed that if default be made in the payment of said debt, or any part thereof, or if any attempt be made to remove or dispose of said property, or if at any time said mortgagees shall deem the said debt unsafe, or whenever they shall choose so to do, they are hereby authorized, either by themselves or agent, to enter upon the premises where
