Smeed v. Stockmen's Loan Co.

• Decision Date: 25 January 1930
• Docket Number: 5265,5266,5267
• Citation: 284 P. 559,48 Idaho 643
• Court: Idaho Supreme Court
• Parties: J. W. SMEED et al., KARL J. HARTMAN and MORRIS HARTLEY, Respondents, v. STOCKMEN'S LOAN COMPANY, a Corporation, Appellant

284 P. 559

48 Idaho 643

J. W. SMEED et al., KARL J. HARTMAN and MORRIS HARTLEY, Respondents, v. STOCKMEN'S LOAN COMPANY, a Corporation, Appellant

Nos. 5265, 5266, 5267

Supreme Court of Idaho

January 25, 1930

ANIMALS-CHATTEL MORTGAGES-AGISTER'S LIEN-PRIORITY-CHANGE OF POSSESSION-CONSENT OF MORTGAGEE-LIS PENDENS-APPEAL AND ERROR-NEW ISSUES.

1. Trial court's finding upon conflicting evidence that cattle were delivered to plaintiff suing to foreclose agisters' liens, with knowledge and consent of mortgagee where there was in record substantial evidence to support finding, will not be disturbed on appeal.

2. Persons, becoming agisters subsequent to time that mortgagee commenced foreclosure action, were not bound by judgment in foreclosure action because they failed to intervene therein where cattle were delivered to agisters with knowledge and consent of mortgagee so that interest of agisters would not be considered as adverse to that of mortgagee and doctrine of lis pendens would have no application.

3. Mortgagee as defendant in action by agisters for foreclosure of their liens, relying solely upon one issue as to priority of liens, on appeal from adverse judgment, cannot inject other matters and claim that court erred in allowing different items and amounts as part of plaintiffs' lien and in incorporating same in judgment upon ground that they were excessive.

4. Agreement with agisters to continue feeding cattle as well as others added to original number had the effect of continuing liens of agisters, so that action brought by agisters to foreclose liens within six months after cattle were taken from them was timely under C. S., sec. 6412.

5. Where there was no unconditional and voluntary surrender of cattle by agister to mortgagor, and interest of assignee of mortgagee in cattle was acquired before removal of cattle from agister, assignee of mortgagee is not in position to contend for application of the rule as to bona fide purchaser without notice.

6. Fact that number of cattle delivered to agister were withdrawn from agister's pasture did not serve to defeat his lien upon cattle remaining at place of another to whom they were delivered for pasturing and feeding when they were seized by sheriff, as regards priority of agister's lien over that of holder of mortgage on cattle.

7. An agister's lien is not as between the parties or third persons having notice thereof lost by change of possession not inconsistent with it and not under circumstances indicating an intent to waive, relinquish or abandon the lien.

8. Where cattle were delivered to agister with knowledge and consent of mortgagee, the contract for their feed and pasturage was the contract of the mortgagee as well as the mortgagor.

9. Where there is a conflict in the evidence, but there is sufficient proof in the record, if uncontradicted, to support the judgment, it will not be reversed.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for foreclosure of agisters' liens and to determine priority of liens on cattle. Judgment for plaintiffs. Affirmed.

Respondents awarded costs.

Bissell & Bird, for Appellant.

Respondents' claim upon the cattle accrued during the pendency of an action brought by appellant to foreclose a chattel mortgage upon the same cattle, and since respondents did not assert their claim in the pending action, any claim they may have is subject to the rights of appellant as established in such foreclosure action. (17 R. C. L. 1009; note, 56 Am. St. 857; Bergman v. Inman, 43 Ore. 456, 99 Am. St. 771, 72 P 1086, 73 P. 341; Pacific Mfg. Co. v. Brown, 8 Wash. 347, 36 P. 273; Venner v. Pennsylvania Steel Co., 250 F. 292--298; Tilton v. Cofield, 93 U.S. 163, 23 L.Ed. 858.)

The rule of lis pendens applies to personal property as effectively as to real property, irrespective of statute or actual notice. (Smith v. Curreather's Mercantile Co., 76 Okla. 170, 184 P. 102; 17 R. C. L. 1017, 1021; 38 C. J. 15; note, 56 Am. St. 856, 863; Rardin v. Rardin, 85 W.Va. 145, 10 A. L. R. 300, and note, 102 S.E. 295.)

A chattel mortgage, executed and recorded prior to the inception of an agister's lien, is prior in right. (C. S., sec. 6412; 37 C. J. 329, notes 37, 38; Eccles v. Will, 23 N.M. 623, 170 P. 748; Carlson-Lusk Hardware Co. v. Kammann, 39 Idaho 654, 229 P. 85, and authorities therein cited; Wilson v. Donaldson, 121 Cal. 8, 66 Am. St. 17, 53 P. 404, 43 L. R. A. 524; Hanch v. Ripley, 127 Ind. 151, 26 N.E. 70, 11 L. R. A. 61; Wright v. Sherman, 3 S.D. 290, 52 N.W. 1093, 17 L. R. A. 792.)

In order to constitute such knowledge and consent by appellant to the depasturage as to give respondents a prior lien the same must have been actually, unconditionally and intentionally given, with the purpose of charging the feed bill against the cattle and subordinating the mortgage lien to that of the agister, mere acquiescence not sufficing. (Western Seed Marketing Co. v. Pfost, 45 Idaho 340, 262 P. 514; Wright v. Sherman, 3 S.D. 290, 52 N.W. 1093, 17 L. R. A. 792; Central Trust Co. v. Bodwell Water etc. Co., 181 F. 735; Huntley v. Holt, 58 Conn. 445, 20 A. 469, 9 L. R. A. 111; National Wall Paper Co. v. Sire, 37 A.D. 405, 55 N.Y.S. 1009.)

An agister's lien being strictly statutory must be enforced within the time provided by the statute, otherwise the lien is lost. (Gould v. Hill, 43 Idaho 93--102, 251 P. 167; 25 R. C. L. 1056; 3 C. J. 36; 16 Cal. Jur. 353; 37 C. J. 342; McKinley v. Tice, 129 Ore. 190, 276 P. 1110; Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25; Neitzel v. Lawrence, 40 Idaho 26, 231 P. 423; Coeur d'Alene v. Spokane etc. R. Co., 31 Idaho 160, 169 P. 930; 40 C. J. 313; 40 Cyc. 261.)

Appellant was not a party to such extension agreement and its interest in the property was not affected thereby, and since no action was taken by the agister to enforce his lien within the statutory period, his lien is subordinated to that of appellant mortgagee. (Boise Payette Lbr. Co. v. Weaver, 40 Idaho 516, 234 P. 150; Mendini v. Milner, 47 Idaho 322, 439, 276 P. 35, 313; Western Loan & Bldg. Co. v. Gem State Lbr. Co., 32 Idaho 497, 185 P. 554.)

Frank E. Meek and Cleve Groome, for Respondent Hartley.

The appellate court will not disturb a verdict, judgment or order denying a new trial where there is substantial conflict in the testimony and no rule of law appears to have been violated. This is especially so where on appeal there is a conflict in the evidence and there is sufficient proof in the record, if uncontradicted, to sustain or support the judgment. (Mootry v. Hawley, 1 Idaho 543; Fruitland State Bank v. Lauer, 34 Idaho 272, 200 P. 127; Fritcher v. Kelley, 34 Idaho 471, 201 P. 1037; Smith v. Faris-Kesl Construction Co., 27 Idaho 407, 150 P. 25; Walling v. McMillan Sheep Co., 40 Idaho 513, 234 P. 152; Powelson v. Kinney, 40 Idaho 565, 234 P. 935.)

Rice & Bicknell, for Respondent Hartman.

An agister's lien is entitled to priority over the lien of a prior chattel mortgage where the mortgage consents either expressly or impliedly that the stock be pastured and services rendered. (Marnella v. Froman, 35 Idaho 21, 204 P. 202; Vollmer Clearwater Co. v. Union Warehouse & Supply Co., 43 Idaho 37, 248 P. 865; National Bank of Commerce v. McDaniel, 71 Okla. 6, 174 P. 286; Cather v. Spencer, 55 Okla. 511, 154 P. 1130; Lynde v. Parker, 155 Mass. 481, 30 N.E. 74; National Bank of Commerce v. Jones, 18 Okla. 555, 11 Ann. Cas. 1041, 91 P. 191, 12 L. R. A., N. S., 310.)

An agister's lien is not lost by a surrender of possession where the intent is to retain the lien. (Becker v. Brown, 65 Neb. 264, 91 N.W. 178; Gould v. Hill, 43 Idaho 93, 251 P. 167; 3 C. J. 67, p. 35.)

Walter Griffiths, for Respondent Smeed.

The issues for consideration by the appellate court will be limited to the issues raised and contested and determined by the trial court. (3 C. J., p. 1409, sec. 1585, and p. 1432, sec. 1594.)

BUDGE, J. Givens, C. J., and T. Bailey Lee and Varian, JJ., concur.

OPINION

BUDGE, J.

Respondents Smeed, Hartman and Hartley instituted separate actions against appellant and others for the purpose of recovering different sums alleged to be due for the care and feeding of certain cattle. The cases were consolidated for trial and hearing in this court upon appeal by the Stockmen's Loan Company from judgments in favor of respondents. They will be discussed separately hereinafter.

SMEED CASE.

To secure the payment of a sum certain, Lewis L. Young and wife, on January 30, 1924, executed and delivered to the Stockmen's National Bank of Nampa a chattel mortgage, covering, among other property, a considerable number of cattle. The mortgage having become the property of appellant, action to foreclose the same was instituted on January 18, 1926.

Approximately three months after the foreclosure action was filed, or on April 15, 1926, certain of the cattle covered by the mortgage were placed with respondents Smeed for pasturing and feeding. Judgment foreclosing the mortgage was entered in favor of appellant September 26, 1927, and on the same day execution and order of sale was entered in said cause and the sheriff levied upon and took into his possession the cattle theretofore in the possession of respondents Smeed. On September 29, 1927, respondents Smeed filed a claim with the sheriff for the possession of the cattle, and on October 1, 1927, filed their complaint in this action. Two causes of action are set out in respondent Smeed's complaint, one for the foreclosure of the agister's lien to enforce the payment of the sum alleged to be due for feed and pasturage of the cattle by them, and the other in replevin for recovery of their possession. The trial court found and concluded...