Hahn v. Sleepy Eye Milling Co.

• Decision Date: 03 July 1907
• Citation: 112 N.W. 843,21 S.D. 324
• Parties: HAHN v. SLEEPY EYE MILLING CO. et al.
• Court: South Dakota Supreme Court

112 N.W. 843

21 S.D. 324

HAHN v. SLEEPY EYE MILLING CO. et al.

Supreme Court of South Dakota

July 3, 1907

Appeal from Circuit Court, Brookings County.

Action by W. J. Hahn against the Sleepy Eye Milling Company, the Wohleter Elevator Company, and others. Defendant elevator company appeals from a judgment for plaintiff. Affirmed.

Hall Lawrence & Roddle and Ira F. Blewitt, for appellant.

J. P Alexander, for respondent.

FULLER P. J.

Claiming under a thresher's lien filed within the time required by statute in order to be conclusive from the date of threshing as to purchasers before such filing is made, plaintiff brought this action against all of the defendants to recover damages for the conversion of certain grain and obtained judgment against the Wohleter Elevator Company, a corporation and the only appellant. The statute creating the lien is as follows:

"Sec. 737. Every person or persons owning and operating a threshing machine shall have a lien from the date of threshing upon all grain threshed by him with such machine for the value of the services so rendered in doing such threshing. Provided, that the provisions of this section shall not apply to the innocent purchasers of grain after the threshing unless the said lien be filed within ten days.

"Sec. 738. Said liens shall have priority over all other liens and incumbrances upon said grain if filed within twenty days from the day on which said threshing was completed." Rev. Code Civ. Proc.

Contrary to the contention of counsel for appellant, we are inclined to regard section 737, supra, as a valid enactment by which the owner and operator of a threshing machine is given a paramount lien on the grain from the date of the threshing, which precludes purchasers in the open market having no other notice than the statute imparts, provided the lien is filed within 10 days from the time the threshing is completed. It is argued that this thresher's lien law is unconstitutional, because it deprives the grain buyer of property without due process of law, and impairs the right to contract with reference to a legitimate subject, but provisions of our statute similar upon principle have been construed to be authorized exceptions to the general rule protecting those who innocently purchase personal property without any notice of existing liens. Albright v. Smith, 3 S. D. 631, 54 N.W. 816; Sutton v. Mining Co., 15 S.D. 410, 89 N.W. 1020. Where grain had been purchased in the open market prior to the expiration of the statutory time for filing the lien and without any knowledge of plaintiff's claim for threshing or that he had threshed the grain, the North Dakota court has recently held that the grain itself was evidence that it might be subject to a lien for threshing, and that there can be no innocent purchasers of grain during the 30 days allowed for filing the lien. In affirming a judgment for the conversion of grain under a state of facts almost identical with those presented by the record in this case, that court said: "The statute deprives the purchaser of nothing. He gets all that the owner has a right to sell to him. He knows as a matter of law that the owner can not lawfully sell, except subject to the lien of the thresher, if it developes that he has any. The statute is notice to the purchaser of the right to a thresher's lien on the grain up to 30 days from the threshing. McCoy v. Cook, 13 Wash. 158, 42 P. 546. The defendant bought the grain with notice which was as effectual as though the statement for a lien was on file. He acted at his peril, and the statute deprives him of no constitutional or vested right of property." Mitchell v. Elevator Co. (N. D.) 107 N.W. 1085. For rent due or to become due the statutes of some states give the landlord a lien upon all crops, attaching at the commencement of their growth, which need not be filed or recorded, and mere knowledge of the tenancy has been held sufficient notice of the lien to put a purchaser from the tenant upon inquiry and require him to answer in trover. Watt v. Scofield, 76 Ill. 261. Although the facts before us and the statute requiring the lien to be filed within 10 days scarcely call for the application of a doctrine so adverse to appellant, we cite the above as supporting authority, and quote from another case similar upon principle as follows: "The purchaser of the crop from the tenant is bound to take notice of the statutory lien of the landlord thereon for the payment of the rent due or to become due to him from his tenant, and such purchaser cannot acquire any better title to such crop than his vendor had. The removal and sale of such crop, by such purchaser, will amount to a conversion thereof, and, in such case, the purchaser will be liable to the landlord for the value of the crop so converted to the extent of the rent due or to become due from such tenant." Kennard v. Harvey, 80 Ind. 37. Appellant had actual knowledge that the grain of an embarrassed debtor had been recently threshed by some one, and is charged with knowledge of the statute giving the thresher a lien superior to certain mortgages of which it had both actual and constructive notice, and to pay which it applied all the proceeds of the grain in question delivered at its elevator. It was therefore in possession of facts which would suggest to a prudent person the necessity of making some inquiry relative to the thresher's bill; and, having failed in this particular, it is not in the most favorable position to demand relief from the injurious operation of the statute or complain of the following entirely proper instruction of the court, to the giving of which neither objection nor exception appear upon the record: "You will see by the language of this statute that however innocent the purchaser may be, if the lien is filed within 10 days after the threshing is done, the innocence of the purchaser is of no avail or protection to him." Conformable to the doctrine recognized and applied by this court in the recent case of Johnson v. Barry (S. D.) 104 N.W. 1114, 1 L. R. A. (U. S.) 1159, this action could not be maintained under any circumstances without a valid claim for threshing the grain alleged to have been converted by appellant, and it therefore becomes necessary to determine whether it was sufficiently shown that the bond required by section 3145 of the Revised Political Code had been provided and filed by respondent before the threshing was done.

As the use of a steam threshing machine in this state by any person in violation of the act requiring the bond is expressly prohibited and made a public offense, we held in the case above cited that a thresher thus in default could not enforce his contract with the owner of the grain, and was entitled to no compensation for threshing done prior to filing his bond. It is alleged in the complaint that respondent, W. J. Hahn had complied with the statute with reference to filing a bond, that pursuant to a contract with Louis Bebo he threshed the grain in controversy and filed a thresher's lien in the name of W. J. Hahn before the expiration of 10 days. That the threshing was done and a lien filed within the time claimed is unquestioned, but the bond introduced in evidence and relied upon was executed by William Hahn and two sureties, and counsel for appellant maintain that such instrument is wholly insufficient to impart notice that "William Hahn" and "W. J. Hahn" are one and the same person, or that the latter executed the instrument. Upon the authority of our numerous decisions, it must be conceded that there is no presumption that W. J. Hahn is the identical person who executed the bond in the name of William Hahn, but respondent. W. J. Hahn, testified without objection that the signature "William Hahn," attached...