Adams v. Caldwell Milling & Elevator Co.

• Citation: 197 P. 723,33 Idaho 677
• Court: Idaho Supreme Court
• Decision Date: 18 April 1921
• Parties: ELVIN ADAMS, Respondent, v. CALDWELL MILLING & ELEVATOR COMPANY, a Corporation, Doing Business at Weiser, Idaho, Under the Firm Name of WEISER MILLING & ELEVATOR COMPANY, Appellant

197 P. 723

33 Idaho 677

ELVIN ADAMS, Respondent, v. CALDWELL MILLING & ELEVATOR COMPANY, a Corporation, Doing Business at Weiser, Idaho, Under the Firm Name of WEISER MILLING & ELEVATOR COMPANY, Appellant

Supreme Court of Idaho

April 18, 1921

CHATTEL MORTGAGE-GROWING CROP-SEVERANCE-SALE-CONVERSION-LIABILITY OF PURCHASER TO MORTGAGEE-FORECLOSURE BY NOTICE AND SALE-REASONABLE ATTORNEY'S FEE.

1. A mortgage on a growing crop duly recorded is valid as against one who purchases the crop from the mortgagor after severance.

2. One who purchases such a crop from the mortgagor without the consent of the mortgagee is liable to the mortgagee in conversion for the reasonable value of the crop so purchased up to the amount due and unpaid on the mortgage.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

Action for conversion. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Scatterday & Van Duyn and Stone & Jackson, for Appellant.

Plaintiff waived his right to a lien and is estopped from asserting his lien as against this defendant by reason of his failure to assert his rights when he knew the grain was being taken to market and when, by his failure to so act, he permitted the defendant to buy and pay for the grain. (Knollin v Jones, 7 Idaho 466, 63 P. 638; Ryan v. Rogers, 14 Idaho 309, 94 P. 427; Sigel-Campion Livestock Co. v Holly, 44 Colo. 580, 101 P. 68; Ziegler v. Ilfeld, 52 Colo. 275, Ann. Cas. 1913D, 583, 122 P. 56; 11 Corpus Juris, Chattel Mortgages, sec. 339.)

The mortgagee of a growing crop loses his lien by allowing the crop to be removed from the land on which it was grown, thereby removing the means of identifying the property. (5 R. C. L. 444, sec. 78; Brande v. A. L. Babcock Hardware Co., 35 Mont. 256, 119 Am. St. 858, 88 P. 949; Gillilan v. Kendall & Smith, 26 Neb. 82, 18 Am. St. 766, 42 N.W. 281.)

Ed. R. Coulter, for Respondent.

"The mortgage vested the title of the growing wheat in the mortgagee, and the recording of it created constructive notice as against a subsequent purchaser or attaching creditor. The lien follows the grain after severance and removal, and the money after sale, whether such removal be by the mortgagor or by a third person, and whether the removal be rightful or tortious. The change which it underwent did not change the property so as to divest the title of the mortgagee or to prevent its identification." (Jones on Chattel Mortgages, par. 69; Hansen v. Haley, 11 Idaho 278, 81 P. 935; McConnell v. Langdon, 3 Idaho 157, 28 P. 403.)

MCCARTHY, J. Rice, C. J., and Budge, Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

One Reid executed a chattel mortgage on November 10, 1913, to respondent, securing an indebtedness of $ 400 due November 10, 1914, with seven per cent interest, and covering a crop of grain to be grown on certain land, the mortgagor to retain possession until maturity of the indebtedness. After threshing the grain, and before the maturity of the note and mortgage, Reid hauled part away and sold it to appellant. It was of the reasonable value of $ 343.84. In November, 1914, the debt having matured, and being unpaid, respondent foreclosed the chattel mortgage by notice and sale and sold other property covered by it; after paying the expenses of foreclosure, $ 15.15 was credited on the debt secured by the mortgage, leaving a balance of $ 412.85. On learning that appellant had bought the grain, respondent demanded that it be returned to him or that he be paid its value, and appellant refused. Respondent brought action for conversion and recovered the reasonable value of the grain with seven per cent interest from the time of the alleged conversion.

Appellant contends, first, that the record of the mortgage gave no constructive notice to appellant of respondent's lien on the wheat after it was severed and removed from the premises; second, that respondent lost his lien because, upon being informed that Reid was removing the grain, he did not prevent it; third, that an attorney fee should not have been allowed on the foreclosure by notice and sale.

Chattel mortgages may be made upon growing crops and upon crops to be sown and grown in the future. When duly recorded, such a mortgage is notice to all persons claiming to have acquired rights in or to the mortgaged crop through or under the mortgagor, subsequent to the recording of the mortgage. (C S., sec. 6373; Shields v. Ruddy, 3 Idaho 148, at 154, 28 P. 405; Pierce v. Langdon, 3 Idaho 141, 28 P. 401; McConnell v. Langdon, 3 Idaho 157, 28 P. 403.) The lien follows the grain after severance and removal...