Payne v. Mccormick Harvesting Mach. Co.

• Decision Date: 05 September 1901
• Citation: 1901 OK 62,66 P. 287,11 Okla. 318
• Parties: A. A. PAYNE v. MCCORMICK HARVESTING MACHINE COMPANY.
• Court: Oklahoma Supreme Court

1901 OK 62

66 P. 287

11 Okla. 318

A. A. PAYNE v. MCCORMICK HARVESTING MACHINE COMPANY.

Supreme Court of Oklahoma

Decided: September 5, 1901

Error from the District Court of Kingfisher County; before C. F. Irwin, Trial Judge.

Syllabus

¶0 1. REPLEVIN, PETITON IN--Demurrer. A petition in replevin to recover possession of chattels embraced in a chattel mortgage, for the purpose of enabling the mortgagee to enforce his lien, and which sets out the mortgage and shows by independent averments that the particular property sought to be recovered, is not the property embraced in a prior chattel mortgage covering some of the property embraced in plaintiff's mortgage, is not subject to the objection or demurrer that the petition does not show right of possession in the plaintiff.

2. SEASONS--Judicial Notice of. The courts take judicial notice of the seasons, and the time of planting and harvesting annual crops, and know that a crop of wheat growing in April, 1898, is not the crop harvested in 1899.

3. INSTRUCTIONS. The instructions of the court should clearly and intelligently set forth the law as applicable to the issues and evidence submitted, without being conflicting, contradictory, confusing or misleading.

4. SAME--Not Error When. The giving of an instruction which states a correct proposition of law, but which has no application to the issues involved or proof, will not warrant a reversal of the judgment, unless it is apparent that such instruction was calculated to mislead the jury.

5. REPLEVIN--Defense. Under the general denial in replevin, the defendant may make any defense, which will defeat the plaintiff's claim or right to possession as against the defendant, and under the code great liberality is allowed to such defenses.

6 SAME- -Chattel Mortgage. Where the plaintiff claims the right to possession of property by virtue of the lien created by a chattel mortgage, under the general denial the defendant is entitled to show that the mortgage was obtained by fraud or deception, and thus defeat the lien, and consequently the right of possession in the mortgage.

M. J. Kane, for plaintiff in error.

J. C. Robberts, for defendant in error.

BURFORD, C. J.:

¶1 The defendant in error, the McCormick Harvesting Machine company, brought its action against the plaintiff in error, A. A. Payne, to recover the possession of a quantity of wheat stored in a bin on which the Machine company claimed to have a chattel mortgage. Payne answered by a general denial. The cause was tried to a jury and a verdict returned in favor of the company, that it was entitled to the possession of the wheat, and that the value of its interest was $ 136.18. Payne appealed, and the cause is here for review.

¶2 The first error complained of is that the demurrer to the petition should have been sustained. The chattel mortgage under which the Machine company claimed its lien and right to possession, was executed on the 27th day of April, 1898, and embraced the following described chattels:

"One McCormick harvester and binder complete, also all of 80 acres of wheat growing on land described below, the wheat is subject to two chattel mortgages to W. N. Cochran in the sum of $ 74.00 and $ 34.50, otherwise clear of incumbrance, and also any and all increase of said stock, so long as any part of said indebtedness or interest thereon, remains unpaid, said property being now in the possession of the undersigned, A. A. Payne, located 3 S. of Kiel on the real estate now in the possession of above as homestead claim. And also all the crops of every kind, name, nature and description which are now planted, sown, grown, cultivated, harvested, standing or growing during the years A. D. 1897, 1898, 1899, or during either or any of said years and until said debt is fully paid and satisfied, upon the following described real estate, S. W. 1-4 Sec. 24, Tp. 17, R. 9 W., Kingfisher county, O. T."

¶3 The petition set out the foregoing provisions of the mortgage, and also made the mortgage an exhibit to the petition. The principle contended for by counsel for Payne is, that the petition and mortgage disclose on the face of the papers that the lien of the Machine company was subject to two prior liens in favor of Cochran, and that the company was not entitled to possession as against the world, until the two prior liens were released or satisfied, and that the petition should have alleged facts showing that the wheat sought to be recovered in this case was not in fact subject to the former and prior liens.

¶4 Without passing upon the question of law presented by this contention, we hold that the facts pleaded are not subject to the objection presented. The further allegation is made in the petition that: "Said mortgage covers and includes 500 bushels of wheat raised on above tract and harvested in the year 1899, which said wheat is now in the granary on the premises above described in said county and territory." And it is the crop of wheat raised and harvested in the year 1899 that is the subject of this controversy. The two prior chattel mortgages were liens upon eighty acres of wheat growing on the land in April, 1898. The court takes judicial knowledge of the seasons, and the ordinary time for planting and harvesting annual crops. The court judicially knows that a wheat crop growing in April, 1898, would in the regular course of the seasons be harvested in the summer of 1898, and that a crop of wheat grown and harvested in the year 1899 could not in the course of nature, be the same crop. Hence the wheat which is the subject of litigation in this action is not the same wheat upon which the two mortgages to Cochran were executed. The reasonable presumption is that Cochran's mortgage has been satisfied from the proceeds of the crop upon which it was a lien. The petition and the exhibit set forth facts which make it apparent that the wheat sought to be replevined was not the wheat upon which the prior mortgages were executed. There was no error in overruling the demurrer upon the grounds suggested.

¶5 The next contention is that this demurrer should have been sustained, for the reason that it appears from the facts pleaded that the wheat in controversy had not been sown, and was not in existence at the time the mortgage was executed, or in other words, that a lien cannot be created upon crops to be grown in the future.

¶6 The rule contended for has some foundation in those jurisdictions where the effect of a chattel mortgage is to convey the legal title to the mortgagee. But under our laws the mortgagor retains the title and possession, and the mortgagee has only a lien to the extent of his interest, and must enforce such lien by foreclosure in one of the ways provided by statute.

¶7 Section 3138, Okla. Stat. 1893, provides:

"An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the thing to the extent of such interest."

¶8 And section 3185 provides that contracts of mortgage shall be subject to the provisions relating to liens. These provisions of our statute were adopted from the laws of Dakota territory, and come to us with a well defined and settled construction. The same question was before the supreme court of that territory in the case of Grand Forks Nat. Bank v. Minneapolis and N. Elevator Co., 43 N.W. 806; and in an able and exhaustive opinion, Mr. Chief Justice Tripp reviewed the whole field, covering this subject, and there said:

"The equity rule in regard to mortgages was adopted by our codifiers and has been embodied in our statute. The mortgage no longer conveys title to property either real or personal, but is a mere lien thereon."

¶9 And after quoting the section of the statute hereinbefore referred to, he further says:

"By this section not only is an agreement to create a lien upon property not yet in existence valid, but the lien contracted for attaches the moment that the interests of the party himself attaches. There is no interim of time for hostile interests to intervene. There is no delay provided for within which the lienor is required to obtain a new or more formal instrument or contract of lien, or within which he must obtain from the other party a ratification of the original agreement or reduce the property to actual possession under the contract already made. Under the statute the original contract ipso facto immediately on its acquirement or creation of such property, awakens and brings into life the lien agreed upon. As between the parties themselves, no further action is necessary or required to be done."

¶10 These observations apply of course to mortgages which have been properly executed and recorded as required by law.

¶11 In Merchants Nat. Bank v. Mann, 51 N.W. 946, it was held that a chattel mortgage which covers all crops to be grown during the years 1888 and 1889, and each and every succeeding year until the debt is fully paid, was a valid mortgage upon the crops raised by the mortgagor in 1890. This is a stronger case than the one under consideration, for here the object is to enforce the lien against the crop raised in 1899, and the mortgage specifically enumerated the crops to be raised in that year.

¶12 We think the petition stated a good cause of action, and there was no error in overruling the demurrer.

¶13 On the trial of the cause the defendant submitted two defenses to the right of the plaintiff to recover the property. One defense went to the right of recovery of the debt which the mortgage was executed to secure, and the other to the validity of the lien created by the mortgage. The first defense was that the defendant had purchased a harvester from the plaintiff in 1894, and that it was guaranteed to do good and satisfactory work; that the machine was defective and improperly constructed, and would not do good work; that the...