71 N.W. 547 | N.D. | 1897
Lead Opinion
This litigation involves the ownership of a crop of flax. It was raised upon the plaintiff’s farm in the year 1895. In 1893, plaintiff and defendant entered into the following agreement: “This agreement, made in duplicate this 10th day of September, A. D. 1893, by and between John H. Egger, of Abercrombie, N. D., party of the first part, and E. B. Angelí, of Fargo, N. D., owner of the real estate hereinafter described, party of the second part, witnesseth: That the party of the first part hereby agrees to and with the party of the second part, for the consider
The property in question constitutes the entire crop of flax raised upon the land in 1895. Defendant sold to his father his interest in this crop, and we will assume, for the purposes of this decision, that his father was a purchaser in good faith, for value, and without notice of the terms of the agreement between plaintiff and defendant. Defendant justifies his possession as agent for his father, claiming that his father obtained by the purchase a good title to three-fourths of the flax. The father has offered to deliver and has delivered to plaintiff one-fourth of such crop. It appears that the defendant was indebted to the plaintiff at the time of this sale, and still is indebted to him, in several sums' of money for advances made to defendant, for lumber purchased for him by plaintiff, and for seed furnished him by plaintiff for the crop of 1895. The defendant’s father has offered to pay the indebtedness for the seed, but refuses to pay the other claims. The plaintiff insists upon his right, under the agreement, to hold the possession of and title to the flax until division of the same. His real object, doubtless, is ultimately to retain only enough to make good his share, and secure repayment of the advances made by him to the defendant; but he claims a right under the contract to the title to and the possession of the whole crop until division thereof. The trial court construed the agreement as constituting a chattel mortgage with respect to the three-fourths of the crop,
The judgment is reversed and a new trial ordered.
Concurrence Opinion
(concurring). Previous to the institution of this action there had ■ been no attempt to divide the crop in controversy, and therefore, under the conti'act, the plaintiff was the owner of the crop, and had an absolute right to the possession of