Agric. Bond & Credit Corp. v. Courtenay Farmers' Co-Op. Ass'n

• Decision Date: 28 December 1933
• Docket Number: No. 6150.,6150.
• Citation: 64 N.D. 253,251 N.W. 881
• Court: North Dakota Supreme Court
• Parties: AGRICULTURAL BOND & CREDIT CORPORATION v. COURTENAY FARMERS' CO-OP. ASS'N et al.

64 N.D. 253

251 N.W. 881

AGRICULTURAL BOND & CREDIT CORPORATION

v.COURTENAY FARMERS' CO-OP. ASS'N et al.

No. 6150.

Supreme Court of North Dakota.

Nov. 24, 1933.

On Rehearing Dec. 28, 1933.

Syllabus by the Court.

1. Section 6855 of the Supplement to the Compiled Laws of North Dakota for 1913, as amended by chapter 156 of the Laws of 1929, requires the statement in a threshers' lien to be verified by oath, and a verification by oath means that an oath must be administered to the party claiming the lien by some official having authority to administer an oath, and there must be an affirmative response, or some act, on the part of the party to whom the oath is administered, indicating that he knows he is taking an oath.

2. The jurat of the officer is no part of the oath and is only prima facie evidence that the oath was administered, and if there is evidence showing that the statement of lien was not verified by oath, the purported lien is void.

3. In the instant case the prima facie showing established by the jurat is disproved by direct testimony and other facts and circumstances, and the purported threshers' lien is invalid.

4. A purported seed lien reading as follows: “Courtenay Farmers Co-operative Association, being duly sworn says that on the 20th day of March, A. D. 1930, he furnished to S. M. Posey,” then follows a statement of the number of bushels and a description of the land upon which the seed was to be sown and its value, signed “Courtenay Farmers Cooperative Association, by Robert Turner, Manager. Subscribed and sworn to before me this 7th day of June 1930,” is not the verified statement of the corporation nor the verified statement of its agent made for and on behalf of the corporation, and the seed lien is invalid.

5. The words “by,” “per,” “pro,” used to a signature and adding a description thereto, such as “cashier,” “secretary,” “president,” or “agent,” shows that such person signed an official name alone and not personally.

Appeal from District Court, Stutsman County; R. G. McFarland, Judge.

Action by the Agricultural Bond & Credit Corporation against the Courtenay Farmers' Co-operative Association, the Union Central Life Insurance Company, the Larson Oil Company, and others. From an adverse judgment, the Union Central Life Insurance Company and the Larson Oil Company appeal.

Judgment modified, and as so modified, affirmed.

Herbert G. Nilles, of Fargo, for appellant Union Central Life Ins. Co.

M. W. Duffy, of Cooperstown, for appellant Larson Oil Co.

Knauf & Knauf, of Jamestown, for plaintiff respondent.

Coffey & Strutz, of Jamestown, for respondents Courtenay Farmers' Co-operative Ass'n and Atlantic Elevator Co.

H. G. Nilles, of Fargo, for respondents S M. Posey and Oliver Farm Equipment Co.

C. J. Vogel, of Fargo, for respondent Carl Engle.

Ritchie & Ployhar, of Valley City, for respondent West Motor Sales.

Buck and Buck, of Jamestown, and A. P. Paulson, of Valley City, for respondents Matt Burkhard, Earl Sargent, Jacob Undem, Carl Borg, and Clemens Leder.

BURKE, Judge.

In this action there was a rehearing, and after a careful and thorough re-examination of the record, this decision is rendered.

On the 25th day of September, 1929, the defendant S. M. Posey entered into a written contract with Carl Engle, Ben Engle, and John Doyle, the Engles and Doyle agreeing to farm, during the farming season of 1930, commencing September 25, 1929, and ending November 1, 1930, all of sections 33 and 28, the northwest quarter of section 34, and the west half of section 27, all in township 145, range 62, in Foster county, N. D., said Posey to furnish all seed and pay one-half of the threshing bill, and Carl Engle, Ben Engle, and John Doyle to furnish all twine and all proper and convenient tools, teams, utensils, farm implements, and machinery, and to deliver Posey's one-half of the crops in the granary on farm free of charge, or haul direct to the elevator from the machine.

Crops of flax, wheat, and barley were raised upon the said land during the farming season of 1930, and the grain so raised was stored in the Courtenay Farmers' Co-operative Association and the Atlantic Elevator Company, both in Courtenay, N. D. The storage tickets were, by order of the court, deposited with the clerk of court.

There are claims against said grain as follows:

Mortgage to D. F. Cassidy on one-half of crops grown during the year 1930 on the west half of section 27, northwest quarter of section 34, and southeast quarter of section 28, to secure the payment of one note for $711.30, due September 1, 1930, interest at 8 per cent.; one note for $1,000, due October 1, 1930, interest at 8 per cent. one note for $711.30, due September 1, 1931, interest at 8 per cent.; one note for $1,000, due October 1, 1931, interest at 8 per cent.; which mortgage was duly assigned to the defendant Oliver Equipment Company and was duly filed and recorded on the 9th day of October, 1929.

The Union Central Life Insurance Company claims under an assignment dated April 9, 1930, assigning Posey's interest in the farm contract, for advances in the sum of $1,337.16; and additional advances of $99.92 for gas and oil furnished and used in combine threshing, and the further sum of $800 for farm supplies in connection with the farming operations. Mortgage on crops grown in 1930 on sections 28, 33, west half of section 27, and northwest quarter of section 34, to secure note for $800, interest at 8 per cent., filed April 16, 1930; seed lien filed by Union Central Life Insurance Company for $691.13 for flax furnished and sown on west half of section 27; the $800 item is also claimed by the Larson Oil Company.

Seed lien for $600 for seed wheat filed by the Courtenay Farmers' Co-operative Association June 12, 1930, and a further claim of $181.35, advances for gas and oil used in combine threshing.

Labor lien for $210, filed August 7, 1930, against the crops on all the land, by Matt Burkhard.

Farm labor lien, filed September 29, 1930, by Earl Sargent for $166 against crops grown on west half of section 27, all of sections 28 and 33, and northwest quarter of section 34, $75 of which was earned in threshing the grain.

Farm labor lien filed October 15, 1930, by Clemens Leder, against all of sections 33 and 28 and northwest quarter of section 34, for $75 earned threshing the grain.

Farm labor lien filed October 25, 1930, by Carl Borg for $24.50 against west half of section 27 and northwest quarter of section 34.

Jacob Undem filed farm laborer's lien November 1, 1930, for the sum of $301.25, $220 of which was earned threshing said grain, against the northwest quarter of section 34, west half of section 27, and all of sections 28 and 33.

Chattel mortgage filed April 16, 1930, by Larson Oil Company on all the crops grown on all of the land to secure the payment of $800; the $800 mentioned in the Union Central Life Insurance Company's claim; the defendant Posey waived his interest in the crop in favor of the Larson Oil Company.

On July 31, 1930, Carl Engle purchased from the West Motor Sales two combines for the total time price of $3,340.

On July 25, 1930, Carl Engle agreed in writing to pay the said West Motor Sales the sum of $1,670 for each machine and to assign his portion of the threshing bill to apply on the purchase price, the intent of the writing being to establish a threshers' lien on the crops, 800 acres of wheat in sections 28, 34, 33; all barley on 320 acres in section 28; all flax on 510 acres in sections 27 and 33.

S. M. Posey executed a similar contract, which was filed for record the 4th day of September, 1930.

The trial court made its findings of fact and conclusions of law, and from the judgment duly entered thereon, the defendants join in an appeal from the judgment and demand a trial de novo in this court.

Appellants claim that the threshers' lien is invalid for the reason that it was not filed within twenty days from the time the threshing was completed. Nearly all the grain was hauled to the elevator from the machine at the time of threshing, or very soon thereafter, and no grain was delivered to the elevator after the 1st day of October, except some wheat, which the evidence shows was threshed in September, and 56 bushels of flax, threshed on section 34 on the 23d day of October. In the threshers' lien the statement is 68 bushels from 18 acres in section 34, but the court found that 56 bushels of stored flax was grown on section 34.

The theory of the plaintiff is that the threshers' lien was executed in accordance with the contracts made with the defendants Carl Engle and S. M. Posey, Exhibits 19 and 20, by the terms of which each agreed to pay $1 per acre on 800 acres of wheat in Foster county on sections 28, 34, 33; 320 acres of barley in Foster county on sections 28, 34; 510 acres of flax in Foster county on sections 27 and 32. Each contract provides as follows: “It is specifically understood that the purpose of this agreement is to protect the West Motor Sales and establish a labor lien or a threshers' lien on all crops planted or harvested on land as above described and this lien is to act as a prior lien to any lien heretofore given by me.” In these contracts there is no provision for giving a lien on any flax sown in section 34, and it is the contention of appellants: First, that since Posey and Carl Engle did not agree to give a lien for threshing flax in section 34, that more than twenty days had expired after the threshing of the grain upon which they did agree to give a lien and before the lien was filed; that the contract of Engle and Posey to thresh was completed in September, and the lien, not being filed within twenty days after the completion of the contract for threshing, was invalid; that the combining of some of the green frozen flax on section 34, after the expiration of the time for filing a lien, was an attempt to revive and extend the time in which a threshers' lien may be filed. Second, appellants claim that...