Minneapolis Iron Store Co. v. Branum
| Decision Date | 05 March 1917 |
| Docket Number | 1915 |
| Court | North Dakota Supreme Court |
Rehearing denied April 28, 1917.
Appeal from the District Court of Benson County, Hon. C. W. Buttz Judge.
Reversed and remanded.
Lawrence & Murphy, for appellant.
There was a sufficient division of the grain and vesting of title of the tenant's share in the tenant to warrant us in saying that Branum's mortgage to appellant attached and was a prior lien to the garnishment. The equal value of each share could at least have been ascertained, and each was entitled to his aliquot part. Gates v. Rifle Boom Co. 70 Mich. 309, 38 N.W. 245; Stone v. Quaal, 36 Minn. 46, 29 N.W. 326; Kaufmann v. Schilling, 58 Mo. 218; First Nat. Bank v. Scott, 36 Neb. 607, 54 N.W. 987; Pickering v. Moore, 67 N.H. 533, 31 L.R.A. 698, 68 Am. St. Rep. 695, 32 A. 828.
Identification of the very grains of wheat is not necessary, where it is like and in one mass. Wilson v. Nason, 4 Bosw. 155; Muse v. Lehman, 30 Kan. 514, 1 P. 806.
All persons were bound to take notice of appellant's mortgage. It was timely and properly filed. Frankhouser v. Ellett, 22 Kan. 127, 31 Am. Rep. 171; Brackett v Harvey, 91 N.Y. 214; Muse v. Lehman, 30 Kan 514, 1 P. 808; 5 R. C. L. p. 1050; Ayre v. Hixson, 53 Ore. 19, 133 Am. St. Rep. 819, 98 P. 520, Ann. Cas. 1913E, 659; Jones, Chat. Mortg. § 481; Ilfeld v. Ziegler, 40 Colo. 401, 91 P. 825; Adams v. Wildes, 107 Mass. 123; Kreuzer v. Cooney, 45 Md. 582; Horne v. Hanson, 68 N.H. 201, 44 A. 292; Fuller v. Paige, 26 Ill. 358, 79 Am. Dec. 379.
An equitable lien exists upon the proceeds of the grain, in favor of the holder of this mortgage, and especially is this true against anyone with notice. Howes v. Whipple, 41 Ga. 322.
Plaintiff is estopped to assert or claim a superior right to the intervener, because, by taking a second mortgage upon the same property, he declared himself subordinate in his rights to the intervener, and he cannot change his position to the injury of the intervener. Sever v. Gregovich, 16 Nev. 325; Horne v. Hanson, 68 N.H. 201, 44 A. 292; 16 Cyc. 802.
The division of the tickets was a division of the grain itself. The physical commingling of the grain with other like grain did not affect the title to the property under the storage ticket law. Rice v. Nixon, 97 Ind. 97, 49 Am. Rep. 430; Schindler v. Westover, 99 Ind. 395; Sexton v. Graham, 53 Iowa 181, 4 N.W. 1090; Nelson v. Brown, 53 Iowa 555, 5 N.W. 719; Ledyard v. Hibbard, 48 Mich. 421, 42 Am. Rep. 474, 12 N.W. 637; Hall v. Pillsbury, 43 Minn. 33, 7 L.R.A. 529, 19 Am. St. Rep. 209, 44 N.W. 673; State v. Barry, 77 Minn. 128, 79 N.W. 656; O'Dell v. Leyda, 46 Ohio St. 244, 20 N.E. 472; McBee v. Ceasar, 15 Ore. 62, 13 P. 652; Dole v. Olmstead, 36 Ill. 150, 85 Am. Dec. 397.
When grain is delivered to and placed in an elevator in the due and ordinary course of such business, it is not to be expected that the grain of like kind, belonging to different persons, shall be put into a separate bin or place, but it may be presumed that the depositors of such grain and the warehouseman all intended and expected that it should go into the common mass. These transactions nearly always are contracts of bailment. Rice v. Nixon, 97 Ind. 97, 49 Am. Rep. 430; Dammann v. Schibsby Implement Co. 30 N.D. 15, 151 N.W. 985.
Torger Sinnes and Clyde Duffy, for respondent.
The intervener's mortgage never attached to the grain in question, because its mortgagor never had title to such grain, and, further, the grain had been so intermingled with other grain of like kind that it could not be identified. A mortgage may be given upon property not yet acquired, but the lien of such mortgage never attaches until the mortgagor actually acquires such property or an interest therein, and in the latter case only to such interest. Comp. Laws 1913, sec. 6706.
A cropper does not acquire any interest in the grain raised until a division thereof and final settlement. Especially is this true where the contract reserves title to all crops in the landowner until such conditions have been met. Angell v. Egger, 6 N.D. 391, 71 N.W. 547; Bidgood v. Monarch Elevator Co. 9 N.D. 627, 81 Am. St. Rep. 604, 84 N.W. 561; Hawk v. Konouzki, 10 N.D. 37, 84 N.W. 563; Aronson v. Oppegard, 16 N.D. 595, 114 N.W. 377; Wadsworth v. Owens, 17 N.D. 173, 115 N.W. 667; Simmons v. McConville, 19 N.D. 787, 125 N.W. 304; Wadsworth v. Owens, 21 N.D. 255, 130 N.W. 932; McFadden v. Thorpe Elevator Co. 18 N.D. 93, 118 N.W. 212; Whithed v. St. Anthony & D. Elevator Co. 9 N.D. 224, 81 Am. St. Rep. 562, 83 N.W. 238; Herrmann v. Minnekota Elevator Co. 27 N.D. 235, 145 N.W. 821.
The division of the storage tickets issued by the elevator company did not amount to a division of the grain, and is wholly immaterial. Hall v. Pillsbury, 43 Minn. 33, 7 L.R.A. 529, 19 Am. St. Rep. 209, 44 N.W. 673; 6 C. J. 1097 note (b).
The obligation of bailment created when an elevator company receives grain into its elevator is of such a peculiar character that the elevator company can fully discharge it to the ticket holder by a delivery of grain of the same kind, grade, and quantity. Best v. Muir, 8 N.D. 48, 73 Am. St. Rep. 742, 77 N.W. 95.
In this case the intervener's mortgage never attached or became a lien upon the grain, because the description in the mortgage is insufficient to identify the grain, and further, the grain was so commingled with other like grain that it could not be identified. Bidgood v. Monarch Elevator Co. 9 N.D. 627, 81 Am. St. Rep. 604, 84 N.W. 561; Blakely v. Patrick, 67 N.C. 40, 12 Am. Rep. 600; Jacobsen v. Christiansen, 18 Utah 149, 55 P. 562; Wattles v. Cobb, 60 Neb. 403, 83 Am. St. Rep. 537, 83 N.W. 195; Williamson v. Steele, 3 Lea, 527, 31 Am. Rep. 652; Barrett v. Fisch, 14 Am. St. Rep. 243, note.
As against third persons the mortgage must point out the subject-matter so that third persons may identify the property covered by aid of such inquiries as the instrument itself suggests. 6 Cyc. 1022, and note 25, 1025, and cases cited in note 34; 7 Cyc. 36; Jones, Chat. Mortg. 5th ed. § 56; 5 R. C. L. 405, 426, § 58, 441.
There is no question of estopped in this case. Neither is there anything in the record to disclose the existence of a second mortgage on the grain in question, excepting by an offer of proof made by counsel on the other side after the case was closed and such offer refused by the court. But even so, the holder of a second mortgage is never estopped to question the validity of a first mortgage. 10 R. C. L. 689.
This is an appeal by the intervener from the judgment and order denying the motion for a new trial.
Action was brought by plaintiff in the district court of Benson county, North Dakota, against defendant, upon a promissory note. In the main action, judgment by default was entered against the defendant. Ancillary to the main action, garnishment process was issued by the plaintiff and served upon the Monarch Elevator Company, as garnishee.
The answer of the garnishee was that on the 16th day of October, 1915, the time of the service of the garnishee by process, the Monarch Elevator Company had in its possession and under its control 1,302 45/60 bushels of No. 1 Durham wheat, which the defendant, Wm. Branum, claims to own, and further answered by showing that on the 20th day of October, 1915, the International Harvester Company of America, a corporation, served upon this garnishee a notice of claim of lien upon said grain, said notice being marked "exhibit A."
The garnishee also claims a lien for its storage from the 9th day of October, 1915, and for handling charges, in case such grain should be removed. The garnishee, except as stated herein, denies any other liability to the defendant, Wm. Branum. "Exhibit A" was also served upon the plaintiff in the main action.
The International Harvester Company of America appears in this action as intervener, and its complaint of intervention, in effect, is as follows:
That the intervener is a foreign corporation; that on the 23rd day of January, 1913, defendant, Wm. Branum, executed and delivered to this intervener eight promissory notes, as follows; to wit, one note for $ 42.28, due October 1st, 1913, with interest at 10 per cent; one note for $ 105.05, due October 1st, 1913, with interest at 10 per cent; one note for $ 160.68, due October 1st, 1913, interest at 8 per cent; one note for $ 287, due October 1st, 1913, interest at 10 per cent; one note for $ 130.05, due October 1st, 1913, interest at 10 per cent; one note for $ 284.84, due November 1st, 1913, interest at 10 per cent; note for $ 149.36, due November 1st, 1913, interest at 8 per cent; note for $ 228.95, due November 1st, 1914, interest at 8 per cent; and three notes dated April 3rd, 1912, one for $ 800, due November 1st, 1912, interest at 7 per cent; one for $ 837.57, due November 1st, 1913, interest [36 N.D. 362] at 7 per cent; and one for $ 837.50, due November 1st, 1914, interest at 7 per cent.
That on the 2d day of November, 1914, as a part of the same transaction, and for the purpose of securing payment of such promissory notes, the defendant, Wm. Branum, executed and delivered to the intervener a certain chattel mortgage for one half of all wild and tame crops of every nature now growing, heretofore planted, sown, or grown, cultivated, or harvested, during the year 1915, on the following described real estate in Benson county, state of North Dakota northeast one quarter (N.E. 1/4) of Section 19, south one half (S. 1/2) of the southeast one quarter (S.E. 1/4) of Section 18, and the south half (...
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