Bidgood v. Monarch Elevator Company
| Decision Date | 21 November 1900 |
| Citation | 84 N.W. 561,9 N.D. 627 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Lauder, J.
Action by Albert Bidgood against the Monarch Elevator Company. Judgment for plaintiff. The Monarch Elevator Company appeals.
Reversed.
Judgment reversed, and a new trial ordered.
W. E Purcell, for appellant.
It was error to permit the mortgagor to testify over objection that the chattel mortgage was signed by him in the presence of the witnesses mentioned on the mortgage. Keith v Haggart, 2 N.D. 18; Donovan v. Elev. Co., 8 N.D. 585. The evidence disclosed that the grain was put in general storage without any division, and with the knowledge and consent of plaintiff a storage ticket issued therefor. It was therefore error to permit the mortgagor to testify to a division of the grain. George v. Triplett, 5 N.D 50. Under the contract in evidence the title to all the grain raised upon the land described in the chattel mortgage was in the land owner and not in the mortgagor. Angell v. Egger, 6 N.D. 391; Whithed v. Elev. Co., 9 N.D. 224, 83 N.W. 238; Plano Mfg. Co. v. Jones, 8 N.D. 315; Best v. Muir, 8 N.D. 44. Plaintiff waived his mortgage lien by placing the wheat in defendant's elevator in general storage, --he himself caused it to be mixed with the general mass of grain. Sanford v. Elev. Co., 2 N.D. 6; Best Brewing Co. v. Pillsbury, 5 Dak. 62; Nor. Dak. Elev. Co. v. Clark, 3 N.D. 26. Conversion of mortgaged property by the mortgagee extinguishes the lien. Everett v. Buchanan, 2 Dak. 249. The defense of waiver raised a question of fact for the jury. Warnken v. Chisholm, 8 N.D. 243; Peterson v. Elev. Co., 9 N.D. 55, 81 N.W. 59.
Freerks & Freerks, for respondent.
The description of the property mortgaged was sufficient. Coughran v. Sundback, 70 N.W. 644; Advance Thresher Co. v. Schmidt, 70 N.W. 646; Union Nat. Bank v. Oium, 3 N.D. 193, 54 N.W. 1034; Strolberg v. Brandenbury, 39 Minn. 348; Wells v. Wilcox, 68 Ia. 708; Wheeler v. Becker, 68 Ia. 723; Knapp, Stout & Co. v. Deitz, 24 N.W. 471; Schaffer v. Pickrell, 22 Kan. 431. It was not necessary to prove that the chattel mortgage was signed in the presence of two witnesses. An instrument or contract made by statute may be proved in the same manner as one having no subscribing witnesses whatever. § 3888a, Rev. Codes. The record does not show anything from which a waiver of the plaintiff of his mortgage lien can be inferred, nor does it show that the plaintiff ever intended to do so.
This is a contest wherein the plaintiff, claiming as mortgagee, seeks to recover from the defendant damages for the conversion of certain wheat. A trial to a jury resulted in a directed verdict for plaintiff. A new trial was denied, and defendant appeals from the judgment.
Among the numerous errors assigned we shall notice but one, and that relates to the ruling of the court in directing a verdict for plaintiff. This ruling must be reversed, because we are clear that under the evidence, as it now stands, it does not appear that plaintiff's mortgage ever attached. The mortgage was given to plaintiff by one A. C. Weldon to secure a promissory note, both note and mortgage bearing date April 7, 1899. The mortgage purported to cover "one-half of crop sown and grown on the W. 1/2 of N. E 1/4 of Sec. 17, T. 132, R. 48, for the year 1899." The mortgagor, Weldon, was in possession of said land by virtue of a contract of lease theretofore entered into with the owner of said land. This contract was introduced into evidence. It is long, and specific in its provisions. Its substance is, in effect, that the tenant, the party of the second part, shall raise the crop entirely at his own expense, and shall perform, certain covenants in the lease contained. In case of failure to perform, the first party may perform and retain sufficient of the crop to reimburse himself, but ultimately the first party (the landlord) is to deliver so much of the crop to second party as will, with amounts retained for expenses incurred, give the second party (the tenant) the benefit of two-thirds of the crop grown; and the lease declares that "until such delivery the absolute title of all the grain raised upon said premises shall be and remain in the party of the first part, and the said party of the second part acquires no right, title, or interest therein." The tenant raised a crop upon the land in the year 1899. This court has held that under such a contract the title and right of possession of the crop were in the landlord, and remained in him until divided as provided in the lease, and that, if the tenant took possession of the crop, or any part thereof, before such division, the landlord could maintain replevin therefor. Angell v. Egger, 6 N.D. 391, 71 N.W. 547; Whithed v. Elev. Co., 9 N.D. 224, 83 N.W. 238. When the crop in question in this case was threshed, it was hauled, without division, to the elevator of the defendant, and placed in general storage. At that time the landlord had full title to and control of the entire crop. He was present when it was so delivered, and the tenant was also present, and the mortgagee, who was in the employ of the tenant, was also present, and hauled and delivered a portion of the crop; and all these parties knew the grain was being delivered for general storage....
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