Joslyn v. Smith

• Decision Date: 30 June 1891
• Citation: 49 N.W. 382,2 N.D. 53
• Parties: Joslyn v. Smith et al.
• Court: North Dakota Supreme Court

2 N.D. 53

49 N.W. 382

Joslyn

v.Smith et al.

Supreme Court of North Dakota.

June 30, 1891.

Syllabus by the Court.

1. In an action to foreclose the seed lien given by our statute it is not necessary to allege in the complaint that the seed was sold to be sown on any particular tract of land. It is enough on this point if the complaint shows that the seed was sown on land “owned, used, occupied, or rented” by the purchaser.

2. A judgment will not be reversed by reason of the failure of the trial court to make a finding upon a particular point in a case where the result could not have been different if the court had found the fact exactly as alleged by such party.

3. A party does not waive his right to a statutory lien by taking other security for the debt, unless the security taken or credit extended is such as to evidence an intent to waive the lien and rely exclusively on the security given.

Appeal from district court, Steele county; William B. McConnell, Judge.E. J. & J. P. McMahon and J. E. Robinson, for appellants. C. J. Paul, ( Stone, Newman & Resser, of counsel,) for respondent.

Bartholomew, J.

This was an action in equity to foreclose what is known under our statute as a “seed lien.” The parties defending were prior mortgagees. The findings and conclusions of the trial court were in plaintiff's favor, and judgment accordingly, and defendants appeal. Of the errors assigned three only are noticed in appellant's brief. It is claimed that the complaint fails to state a cause of action, because it does not state that the seed grain was sold by plaintiff to be sown upon any particular land. As was said by this court in Lavin v. Bradley, (N. D.) 47 N. W. Rep. 384, this seed lien is entirely a creature of the statute, and can be acquired only by strict compliance therewith. But nothing further is required. When the conditions of the statute are met, the lien is perfect; and the statute does not require that the seed grain should be purchased to be sown upon any particular tract of land. In this respect it differs from the lien of the mechanic or material-man, and the reason for such difference is clear. The materialmanis given a lien upon the realty on the theory that he parts with his material with the understanding that it will be used in making improvements upon, and thus augmenting the value of, certain specified realty. But the seed-grain man is given a lien only upon the crop raised from the seed sold. It is entirely immaterial upon what land it may be grown. It is true that it must be upon land “owned, used, occupied, or rented” by the purchaser of the seed; in other words, the purchaser must be interested in having a crop raised from the seed. Without this limitation, the law might be made the instrument of injustice. If A. should enter into a contract with B., by the terms of which B. agreed for a stated compensation to furnish the seed and seed a certain tract of land belonging to A., and B. should purchase the seed, on credit, from C., and seed the land, and receive his compensation, it would be most unjust to permit C. to file a lien on A.'s crop to secure the debt due from B. to C. It is next urged that the court did not pass upon the lien asserted by appellants under a prior mortgage. It is true the court made no findings as to the execution of such mortgage, or as to its non-payment. No such findings were asked, nor can their absence in...