Moen v. Lillestal

• Decision Date: 29 November 1895
• Citation: 65 N.W. 694,5 N.D. 327
• Court: North Dakota Supreme Court

65 N.W. 694

5 N.D. 327

JOHN L. MOEN v. OLE P. LILLESTAL, et al

Supreme Court of North Dakota

November 29, 1895

Appeal from District Court, Richland County; Lauder, J.

Action by John L. Moen against Ole P. Lillestal and others.

From the judgment, plaintiff and D. E. Rice, one of the defendants, appeal.

Modified.

Affirmed.

McCumber & Bogart, for appellant Moen.

S. H Snyder, for appellant Rice.

W. E Purcell and C. E. Wolfe, for respondents.

OPINION

BARTHOLOMEW, J.

This is a contest for priority of right to the proceeds of a crop raised by the defendant Lillestal in the year 1894 on the S.W. 1/4 and the W. 1/2 of the S. E. 1/4 of section 15, township 133, range 49, in Richland County, N. D. Plaintiff claims priority as to one-half of said crop as tenant in common of the crop with said Lillestal, and as to the other half he claims priority by reason of Lillestal's abandonment of the land. Both claims are based upon the contract hereafter mentioned. The defendant Lillestal makes no claim whatever to the crop. The defendant Rice claims a portion of the crop under a chattel mortgage executed by Lillestal to him on the 6th day of August, 1892, covering all crops growing or to be grown on the said S.W. 1/4 in the years 1892 and 1893, and until the debt secured by said mortgage was fully paid. This mortgage was entirely unpaid at the time of the trial. The defendant C. M. Johnson claims under a mortgage executed to him by Lillestal on November 1, 1893, covering the undivided one-half of all crops to be raised upon said premises in the years 1894, 1895, and 1896, to secure an indebtedness of $ 350. Nothing had been paid on this indebtedness. Johnson also claims under another mortgage upon the same property executed by Lillestal to him May 15, 1894, to secure the sum of $ 25.25, which was also unpaid. The defendant Van Dusen-Harrington Company claims under a mortgage executed by Lillestal to one Olsen on November 8, 1893, to secure a debt of $ 332.70 and interest, and covering all crops raised on said premises during the year 1894, and until the debt was paid. This debt was duly assigned by Olsen to the Van Dusen-Harrington Company, and the debt was entirely unpaid. The defendant D. M. Osborne & Co., a corporation, claims under a mortgage executed to it by Lillestal May 30, 1894, to secure $ 153.86 and interest, and covering all the crop to be grown in the years 1894, 1895, and 1896. All of these mortgages were duly and legally executed, and properly filed for record, so that no questions arise in that behalf. The contract between plaintiff and Lillestal, and under which plaintiff claims the crop, is too long for insertion here. We give it in substance, with quotations of the parts upon which counsel more especially rely. It is what is known as a "land contract," plaintiff being the vendor, and Lillestal the purchaser. It is dated April 20, 1892, and by its terms plaintiff agreed, upon payment by Lillestal of the sums therein specified, and the performance of certain conditions precedent, to sell and convey to Lillestal the premises already described. Lillestal was to pay therefor the sum of $ 3,000, in manner and at times as follows: "So much as the one-half of all crops on said land shall amount to at market price each year, and all interest to be computed at 8 per cent. annually, and paid out of the one-half belonging to second party each year until all is paid." As security for due performance on his part, Lillestal agreed to break up not less than 50 acres of said land in each of the years 1892 and 1893, and to prepare what was already broken for crop, and to properly seed, cultivate, and harvest the crops. And, continuing, this agreement declared: "Secondly. That he will deliver at the elevator or warehouse at Dwight the one-half (1/2) of all the grain, crops, or produce of every kind which may be grown, raised, or produced upon said land from year to year, beginning with the year 1892; said grain to be delivered as soon as threshed, free from all costs and charges, and receipts for the same to be made out in the name of the party of the first part, and to be at once sent to him. Thirdly. That the party of the second part shall have the option of the sale of said grain from year to year up to the first day of December, but on and after that date this option shall cease, and the sole right of sale belong to the party of the first part. Fourthly. The proceeds of the sale of said grain or produce shall be applied as follows: Firstly, to the payment of taxes on said land, if any are delinquent; secondly, to the payment of the insurance on said grain, and any costs or charges for storage or handling; thirdly, to the payment of the principal, until the same has been paid in full. Fifthly, The party of the second part covenants and agrees to duly execute, and place on file or record, as the case may be, a chattel mortgage on one-half (1/2) the entire crop sown, planted or to be raised upon said premises; said chattel mortgage to be drawn in favor of the party of the first part, and to be a first or prior lien upon that portion of the crop mortgaged, and to be given on or before May 15th, 1892, and yearly thereafter until one-half (1/2) of the purchase price of said land shall have been fully paid, together with the interest on the same." Second party reserved the right to make further payments, if he desired, and agreed to pay all taxes and assessments; and provision was made for declaring a forfeiture in case of default, and settling the rights of the parties in the land, time being made the essence of the contract. The findings of the trial court show that Lillestal signally failed in the performance of his covenants. This action was in fact brought to foreclose said contract, and get possession of the crop of 1894, and the other defendants were joined because they had liens of record on the crop. The findings are full, and are not questioned. The decree settles all rights in the realty, as between plaintiff and Lillestal, and no complaint whatever is made to that part of the decree. All the errors are assigned upon the court's conclusion of law as to the disposition of the crop. The court decreed the lien of defendant Johnson under his mortgage of November 1, 1893, to be a first mortgage lien upon the undivided one-half of said crop, and the lien of the Van Dusen-Harrington Company under the mortgage to Olsen dated November 8, 1893, to be a valid mortgage lien upon the whole of such crop, subject only to Johnson's lien on the undivided one-half, and the lien of Johnson under the mortgage of May 15, 1894, to be a valid lien, subject only to the two last above mentioned mortgages, and the lien of D. M. Osborne & Co. to be a valid lien upon the whole of said crop, subject to the mortgage liens already declared. All these defendants were awarded costs and disbursements against plaintiff. The defendant Rice was declared to have no lien on the crop of 1894. Plaintiff and defendant Rice appealed.

The case must turn upon the construction of the contract between plaintiff and defendant Lillestal. We reach no conclusion in the matter that is entirely satisfactory to ourselves. Remembering the nature and purpose of the contract, and the language used, we are unable to say with confidence what construction will certainly reflect the intentions of the parties. The language of the contract is somewhat ambiguous, and different provisions somewhat conflicting; but, after giving it due consideration, we are unable to say that the trial court erred in its construction of the contract. We think it did not, and we will briefly state our reason.

The learned counsel for appellant Moen, while claiming that the construction for which they contend has some support in the express wording of the contract, yet rely mainly upon the effect of the contract taken as a whole. They claim that the effect of this contract was to put Lillestal in possession of land belonging to Moen, with the privilege of raising crops thereon, but bound to render the one-half...