Craig v. Burns
| Citation | 212 P. 856,65 Mont. 550 |
| Decision Date | 22 January 1923 |
| Docket Number | 4966. |
| Parties | CRAIG v. BURNS, SHERIFF, ET AL. |
| Court | United States State Supreme Court of Montana |
Rehearing Denied Feb. 27, 1923.
Appeal from District Court, Cascade County; H. H. Ewing, Judge.
Action by Robert Craig against J. P. Burns, as Sheriff of Cascade County, and another. Judgment for plaintiff, and defendants appeal. Affirmed.
T. F McCue, John G. Noren, and O'Leary & Doyle, all of Great Falls, for appellants.
R. K West and Cooper, Stephenson & Hoover, all of Great Falls, for respondent.
On December 13, 1918, E. J. Ball and Mollie T. Ball, his wife were indebted to Robert Craig and Jane Craig in the sum of $19,200, secured by a mortgage upon real estate situated in Cascade county. The mortgagors agreed to keep the taxes upon the property paid, to pay interest upon the principal annually, and to discharge the principal by annual installments beginning January 1, 1920. In the fall of 1919 the mortgagors seeded a portion of the land to winter wheat. They failed to pay the taxes for 1919, and likewise failed to pay the interest or the installment of the principal due January 1, 1920. Later, in January, 1920, Ball and his wife vacated the premises, and in writing directed Robert Craig to take possession thereof "with all crops growing on said land." Under that authority Craig entered into possession, made certain necessary repairs, gave to the growing crop of wheat whatever attention was necessary, and at its maturity harvested it and had it ready to be threshed on September 8, 1920, when the sheriff of Cascade county seized it under an execution issued in an action wherein Edith M. Noren was plaintiff and E. J. Ball was defendant. A demand for the return of the wheat was made, but refused, and this action in conversion was commenced. Issues were joined, and the cause was tried to the court without a jury. The amount and value of the wheat were fixed by stipulation of the parties. From a judgment in favor of the plaintiff the defendants appealed.
It is urged that the complaint does not disclose such a general or special property interest in plaintiff as will support an action in conversion, but the principal argument in support of this contention is founded upon the assumption that whatever right plaintiff has is to be determined as of the date when this action was commenced. The assumption is altogether erroneous. Plaintiff's right to damages is fixed as of the date of the conversion, and not as of the date when his complaint was filed. Babcock v. Caldwell, 22 Mont. 460, 56 P. 1081; Didriksen v. Broadview Hardware Co., 58 Mont. 421, 193 P. 63.
The plaintiff alleges that at the time the wheat was seized he was the owner, in possession, and entitled to the possession thereof, and that allegation, standing alone, would be sufficient; but he also sets forth the facts disclosing his claim of title or interest, and the sufficiency of the complaint will be tested by these allegations. Paine v. British Butte Min. Co., 41 Mont. 28, 108 P. 12.
At the time the wheat was seized by the sheriff it had been severed from the soil, and was personal property. Craig was a mortgagee of the real estate, rightfully in possession of it and of the wheat by virtue of the authority conferred by the mortgagors, who were the owners, and as such mortgagee in possession he was entitled to retain the possession until his debt was paid in full. Fee v. Swingly, 6 Mont. 596, 13 P. 375; Toole v. Weirick, 39 Mont. 359, 102 P. 590, 133 Am. St. Rep. 576. If he had rented the premises he would have been held to account in equity for the rents and profits, and would have been bound to apply them in reduction of the mortgage debt (Barnett v. Nelson, 54 Iowa, 41, 6 N.W. 49, 37 Am. Rep. 183; Toole v. Weirick, above; 2 Jones on Mortgages, § 1114), or if he had managed the property personally, and had planted the wheat after taking possession, the measure of his liabilty would not have been affected. The wheat would have belonged to him and he would have been held for the rental value of the premises. Holton v. Bowman, 32 Minn. 191, 19 N.W. 734; Toole v. Weirick, supra; 2 Jones on Mortgages, § 1122. However, he did not plant the wheat, and it was not covered by the mortgage. It belonged to the mortgagors, and, if they had retained possession, and had harvested the crop before sale under foreclosure, their right to it could not have been questioned. Locke v. Klunker, 123 Cal. 231, 55 P. 993; 27 Cyc. 1247-1249; 2 Jones on Mortgages, §§ 697-780.
The writing under which Craig held possession of the wheat was not a bill of sale It did not purport to transfer title or do more than confirm his right to possession. In the absence of anything to indicate a contrary intention, it will be presumed that he held the wheat in trust, the proceeds to be applied toward the satisfaction of his debt (2 Jones on Mortgages, § 1126) and he was entitled to hold it against the attaching creditor of the mortgagor until the debt was paid and he could be...
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