Shields v. Ruddy

• Decision Date: 05 December 1891
• Citation: 28 P. 405,3 Idaho 148
• Parties: SHIELDS ET AL. v. RUDDY ET AL
• Court: Idaho Supreme Court

28 P. 405

3 Idaho 148

SHIELDS ET AL. v. RUDDY ET AL

Supreme Court of Idaho

December 5, 1891

LEASE-CHATTEL MORTGAGE-RELEASE-RECORD OF MORTGAGE NOTICE. On October 1 1889, R. leased by written indenture of D. certain lands situated in Latah county, Idaho, for the year 1890, at a rental of one-third of the crop grown. Term to commence October 1, 1889. The lease contained a provision reserving to lessor "the right to seed said ground, provided the said second party [lessee] fail to do the same in good season." No provision of forfeiture or right of re-entry in lease. D. entered under lease and continued in possession working and operating ranch to end of term. On the 28th of January, 1890, D. executed a chattel mortgage on said crop to S., which mortgage was duly recorded. On the 24th of March 1890, D. executed to R. [lessor] a release of the lease. There was no change in the possession, management or operating of farm after the execution of release. Crop was divided as provided for in lease. Held, that the record of the chattel mortgage was notice to all acquiring an interest from D. in the crop subsequent to record thereof that R. took release subject to rights of S. under mortgage (following Pierce v. Langdon, decided at present term).

RELEASE A FRAUD.-Under the evidence in this case, held that the release from D. to R. was made and intended as a fraud upon S. the holder of the chattel mortgage.

CONSPIRACY TO DEFRAUD-COMPETENCY OF WIFE TO TESTIFY-COURT TO INSTRUCT JURY.-In an action for conspiracy to defraud, against two defendants, under a statute which declares "a husband cannot be examined for or against his wife without her consent, nor the wife for or against her husband without his consent," held, that the wife of one of the defendants might be examined as a witness on the part of the plaintiff under instructions by the court to the jury, if asked; that her testimony was only to be considered as against the other defendant than her husband.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded; costs to appellant.

Forney & Tillinghast, for Appellants.

After proof of the combination of the parties, the acts or declarations of one are evidence against the other. (Stovall v. Bank, 8 Smedes & M. 305, 47 Am. Dec. 85; Trimble v. Turner, 13 Smedes & M. 348, 53 Am. Dec. 93; Mamlock v. White, 20 Cal. 601; Reitenbach v. Reitenbach, 1 Rawle, 362, 18 Am. Dec. 640; 1 Greenleaf on Evidence, sec. 111.) In a suit against two or more defendants, admissions made by one of them cannot be excluded on motion of the other; the only remedy being to request a charge limiting the effect of their evidence. (Hairgrove v. Millington, 8 Kan. 482; Mousler v. Harding, 33 Ind. 176, 5 Am. Rep. 195; Albaugh v. James, 29 Ind. 398; Crane v. Buchanan, 29 Ind. 570.) Chattel mortgages on crops to be sown and grown are valid. (Arques v. Wasson, 51 Cal. 620, 21 Am. Rep. 718; Miller v. Harvesting Mach. Co., 35 Minn. 399, 29 N.W. 52; Wheeler v. Becker, 68 Iowa. 723, 28 N.W. 40; Oil Co. v. Maginnis, 32 Minn. 193, 20 N.W. 85; Senter v. Mitchall, 16 F. 206.)

J. C. Elder and J. A. C. Freund, for Respondents.

Plaintiff having alleged existence of a lease from one defendant to the other, parol evidence on this point is inadmissible. (1 Greenleaf on Evidence, secs. 87, 88.) Although an agreement may be made to create a lien upon after-acquired property, yet, if the property specified in the lien, or any interest in it, is never acquired by the party agreeing to give the lien, then there is nothing to which the lien can attach, and the record of such a mortgage is not notice of any legal encumbrances. (Jones on Chattel Mortgages, sec. 157, note 5; Long v. Hines, 40 Kan. 216, 10 Am. St. Rep. 189, 16 P. 339.)

HUSTON J. Sullivan, C. J., and Morgan, J., concurring.

OPINION

HUSTON, J.

This is an action by the plaintiffs to recover $ 1,000 damages for the unlawful conversion by the defendants of wheat and barley upon which plaintiffs held a chattel mortgage. The complaint alleges the execution and delivery by the defendant Davidson to the plaintiffs on the twenty-eighth day of January, 1890, of a certain chattel mortgage to secure the payment of certain promissory notes theretofore executed by said Davidson to the plaintiffs, and then owned and held by them. The chattel mortgage then covered the following described property, to wit: "The crop of wheat and barley that may be sown and grown for the year 1890 upon that certain piece or parcel of land lying and being in the said county of Nez Perces, territory of Idaho, and particularly described as follows, to wit: 'The northwest quarter of section 23, township 37 north, of range 5 west, Boise meridian, known as the "Richard Ruddy Ranch."' All the said property being now in the possession of the said first party, in the county and territory aforesaid, and free from all encumbrances." The mortgage is in the form required by the statute, containing usual provisions as to foreclosure and sale in case of default, and provides for an attorney's fee of $ 150 and other expenses, in case of foreclosure, and was duly acknowledged, sworn to by mortgagors, and recorded in the proper office of said county of Nez Perces on January 29, 1890. Complaint charges fraud and conspiracy on the part of defendants, with intent and for the purpose of cheating, wronging and defrauding plaintiffs, by means of which conspiracy an arrangement was made between said defendants whereby said crop of wheat and barley was to be harvested, threshed and sold by defendant Ruddy, and the proceeds thereof to be divided between defendants, to the exclusion of plaintiffs, and in abnegation of their rights under their said chattel mortgage. The complaint charges that in pursuance of said conspiracy said defendant Ruddy had said wheat and barley threshed and sacked, amounting to about one thousand sacks of wheat and about five hundred sacks of barley, and fraudulently sold and conveyed the same to the use of the defendants. Complaint avers the non-consent, in writing or otherwise, of the plaintiffs to the sale of said wheat or barley, or any portion of either; avers the value to be $ 1,600, and that demand was made for same prior to commencement of suit. The answer admits partnership of plaintiffs, execution of notes and chattel mortgage, and non-payment, as charged in complaint; denies all other allegations of complaint except value. Answer avers execution by defendant Ruddy on October 1, 1889, to defendant Davidson, of a lease of the premises aforementioned. Entry by Davidson under said lease, which lease was for the term of one year, and is in the words and figures following, to wit:

"LEASE.--RICHARD RUDDY TO J. F. DAVIDSON.

"This indenture, made this first day of October, 1889, between Richard Ruddy, of the town of Genesee, Idaho territory, party of the first part, and J. F. Davidson, of Genesee, Idaho territory, party of the second part, witnesseth that the said party of the first part, for and in consideration of the covenants hereinafter mentioned and reserved on the part of the second party, has let, and by these presents doth grant, remise and let, unto the said second party, his executors, administrators and assigns, all that parcel of land situated in the county of Nez Perces and territory of Idaho described as follows, viz.: 'The northwest quarter of section 23, township 37 north, range 5 west, Boise meridian, containing one hundred and sixty acres, more or less': To have and hold the said premises, with appurtenances thereto belonging, unto the said second party, his executors, administrators, and assigns, for the term of one year from the first day of October, 1889, to the first day of October, 1890, at a yearly rental of one-third of all grain raised upon said premises, delivered in sacks at threshing-machine; said grain to be well sacked, said first party furnishing sacks for his one-third of the grain. And said second party by these presents covenants and agrees to plow one hundred and sixty acres, or the entire tract heretofore described, and put the same in a good condition to receive the seed; the same to be sown in wheat, oats or barley, the amount of which to be governed by the condition of land to receive grain at time of seeding. Said first party, however, reserves the right to seed said ground, provided the said second party fail to do the same in good season. Said second party is to put out squirrel poison in the spring, and use his best efforts to exterminate the pests on said premises. Said first party reserves the right to use the fields for pasture for his stock after the grain is harvested, and also the right to feed the straw upon the ground. The said second party is to stack the straw in a workman-like manner, and hold same subject to the order of said first party. Said second party is to keep all buildings and fences in good repair; and it is hereby understood and agreed that at the expiration of this lease the said second party shall give peaceable possession of said premises in as good condition as they were at the beginning of said lease, the usual wear and tear excepted; and it is also understood further, that at the expiration of this lease the said second party shall have the refusal of said premises for a period of one, two or three years, as he may elect. In witness whereof we have hereunto set our hands and seals.

"J. F. mark. X his DAVIDSON. [Seal]

"R. RUDDY. [Seal]

"Signed, sealed and delivered in the presence of

"R. RICKERING.

"Recorded at request of C. D. Fleming, November 1, 1889, at 4 o'clock P. M. R. P. MUDGE,

"County Recorder."

That on the twenty-fourth day of March, A. D., 1890, the defendant Davidson, for the expressed consideration of one...