Lavin v. Bradley

• Decision Date: 29 November 1890
• Citation: Lavin v. Bradley, 1 N.D. 291, 47 N.W. 384 (N.D. 1890)
• Parties: Lavin v. Bradley et al.
• Court: North Dakota Supreme Court

1 N.D. 291

47 N.W. 384

Lavin

v.Bradley et al.

Supreme Court of North Dakota.

Nov. 29, 1890.

Syllabus by the Court.

1. Under the statute authorizing a seed lien, (Comp. Laws, § 5490,) the “account in writing” must embrace a description of the land on which the seed has been or is to be planted. Where such description of the land was omitted, held, fatal to the lien.

2. In an action to foreclose such lien, where the complaint shows affirmatively that the land is not described in the account in writing which was filed, held, that such complaint does not state a cause of action so far as the lien is concerned, and that an order of the district court overruling a demurrer thereto will be reversed.

3. Held, further, that a court of equity will not reform such “account in writing” to make it conform to an oral understanding between the parties to the seed-lien transaction by inserting a proper description of the land therein. The lien arises on the statute, and does not depend for its existence upon a contract. Such lien can only be acquired by a substantial compliance with the statute which authorizes the lien.

4. Held, further, that the fact that a description of a different tract of land from that upon which the seed was sown was inserted through either the design or inadvertence of the party to whom the seed was furnished will make no difference with the rule above laid down.

Appeal from district court, Traill county; William B. McConnell, Judge.F. W. Ames, for appellants. A. B. Levisee, for respondent.

Wallin, J.

This is an action to foreclose a seed lien sought to be enforced under Comp. Laws, §§ 5490-5495, (Sess. Laws 1887, c. 150.) The complaint is as follows:

“(1) That the defendant Clayton E. Bradley on the 30th day of March, 1889, executed and delivered to this plaintiff his certain promissory note bearing said date, whereby he promised to pay to this plaintiff, or to his order, on or before the 1st day of October, 1889, three hundred and thirty dollars, with 10 per cent. annual interest thereon from the date thereof.

(2) That plaintiff is still the holder and owner of said note which is now past due and wholly unpaid.

(3) That the consideration of said note was three hundred bushels of seed wheat sold and delivered by this plaintiff to said Clayton E. Bradley, for the express purpose of seeding a certain half section of land, which he then spoke of as the land which he had recently purchased from Clayton, and as the Clayton farm, or the Clayton tract, to-wit, the north half of section thirty-two of township one hundred and forty-seven of range fifty-one, the same lying and being in the county of Traill, aforesaid, for the crop of 1889.

(4) That within thirty days after the sale and delivery of said seed wheat as above set forth, to-wit, on the 30th day of March, A. D. 1889, this plaintiff, for the purpose of securing the payment of the price of said seed wheat, prepared and filed a notice of said lien, which notice is in the words and figures as follows:

‘A.

Clayton E. Bradley to Thomas Lavin, Dr. March 30th, 1889. To 300 bushels of seed wheat, at $1.10 bushel, $330.

seed lien.

Territory of Dakota, county of Traill-ss.: Thomas Lavin, being sworn, says that on the 30th day of March, A. D. 1889, he made and entered into a contract with Clayton E. Bradley of the township of Ervin, county of Traill, territory of Dakota, to furnish and deliver to said Clayton E. Bradley three hundred bushels of seed wheat of the value of $330, for seeding purposes only, for the year 1889, and that said seed wheat was sown on the north half of section twenty-two, township one hundred and forty-six, range fifty-one, in Norway township, Traill county, Dakota territory; that under and by virtue of said contract the said seed wheat so furnished was of the value of three hundred and thirty dollars, as specified in the annexed account, marked “A,” at the respective dates, and at and for the respective prices specified in said account; that said account is a just, true, and full statement of the seed wheat so furnished to the said Clayton E. Bradley, under said contract, for seeding purposes, and growing of crops for the year 1889 aforesaid, and that there is due and owing thereon to Thomas Lavin, after allowing all credits, the sum of three hundred and thirty dollars, for which a seed lien is hereby claimed in favor of the said Thomas Lavin upon said crop, including the land upon which the same is, under chapter 119 of the 17th session of the legislative assembly of 1887, of the territory of Dakota. Thomas Lavin.

Subscribed and sworn to before me this 30th day of March, A. D. 1889. F. W. Ames, Notary Public, Traill County, D. T. [Seal.]

Territory of Dakota, County of Traill-ss.: Clayton E. Bradley, being duly sworn, on oath says, that he made a contract, as stated in the within affidavit, and purchased the wheat as therein set forth, at the time and prices set out in the account hereto annexed, and the same is to be sown on land therein described. Clayton E. Bradley.

Subscribed and sworn to before me this 30th day of March, A. D. 1889. F. W. Ames, Notary Public, Trail County, D. T. [Seal.]'

That the said seed lien was duly filed in the office of the register of deeds in and for the county of Traill aforesaid, on the 2d day of April, 1889.

(5) Plaintiff resides about twelve miles from the Clayton farm or tract on which said Bradley intended to sow said wheat, and plaintiff did not personally know the description of said lands. The said notice of seed lien was drawn at Mayville, about twenty-five miles from the county-seat, and plaintiff had no opportunity to ascertain the correct description of said land, by consulting the records, without incurring the delay, trouble, and expense of a trip to the county-seat expressly for that purpose. Plaintiff was therefore compelled to rely on the defendant Bradley for a description of the land to be sown, and said Bradley by error or design gave the description incorporated in said lien as above set forth, instead of giving the true one, to-wit, the north half of section 32, township 147, of range 51.

(6) That said Clayton E. Bradley sowed the said seed wheat on the north half of section 32, and the crop of wheat grown on said land in the season of 1889, and all of it, was the product of the seed furnished by this plaintiff, as above stated, the said defendant Bradley; and said defendant Bradley did not sow or plant any wheat on said section 22, township 146.

(7) That said defendants Anna G. and William E. Clayton were well and fully informed of the fact that this plaintiff had furnished the said Clayton E. Bradley the seed to sow the crop grown on the north half of said section 32 in the year 1889, and that said defendants at all times, from seed-time to harvesting of said crop, well knew that this plaintiff claimed a seed lien on said crop, and was equitably entitled thereto.

(8) That said Anna G. and William E. Clayton, nor either of them, have not been in any respect misled or deceived by any error, defect, or misdescription in said seedlien notice, nor have their interests, or the interests of either of them, been, in any respect or degree, prejudiced by any such error, defect, or misdescription.

(9) That the said Clayton E. Bradley is totally insolvent, and absconded from the state of North Dakota about the 1st day of July, 1889; and that this plaintiff has no visible means or prospect of recovering his said claim against him except by virtue of said seed lien.

(10) That the said defendants Anna G. and William E. Clayton, without the consent or approval of this plaintiff, have illegally and wrongfully taken possession of and have appropriated to their own use and benefit the entire crop of wheat grown on the north half of section 32 of township 147 of range 51, and wrongfully and...