221 P. 560 | Idaho | 1923
— This action is one to foreclose a chattel mortgage. The facts as they appear from the record, are as follows: On November 24, 1916, E. M. Staker, by instrument in writing, leased certain premises owned by him to C. C. Olaveson for a term of five years at agreed annual cash rentals as stipulated therein. The lease provided that the lessee should, on the first day of April of each year, make, execute and deliver to the lessor a note and chattel mortgage upon the crops to be grown on the demised premises to secure the payment of the rent for that year. This lease was never recorded. In 1918, on account of the premises being flooded by high water, no crops were raised. Ap oral agreement was made at this time between Olaveson and Staker that the lease then existing should be canceled and that later a new lease should be made. Olaveson resided upon the premises during the years 1918 and 1919 and in the fall of 1918' plowed up part of the land. On January 14, 1919, Chris Olaveson and his wife, and James Olaveson and Joan Olaveson, his wife, made, executed and delivered to the Bank of Roberts their note for $1,185, which was secured by a mortgage on certain personal property and also upon all of the crops to be grown upon the Staker farm in that year. All of the proceeds of this loan, with the exception of $191.25, which was deposited to the checking account of C. C. Olaveson, was used to take up certain obligations of the Olavesons then owing to the bank. The chattel mortgage was filed for record on January 21, 1919. On March 13, 1919, a new lease in writing was entered into between C. C. Olaveson and E. M. Staker, covering the same premises and having the same proviso as the former lease as to the giving of a chattel mortgage on the crop to be grown on the premises to secure the payment of rent for each year but increasing the rental and giving the lessor the privilege of selling the premises. This lease was
Appellants specify sixteen assignments of error. The first attacks the action of the court in overruling the demurrer to the amended complaint, contending that inconsistent causes of action are improperly united; that the causes of action so joined do not affect all the parties to the action and that there is a misjoinder of parties defendant. C. S., sec. 6646, provides as follows:
“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein .... ”
C. S., sec. 6657, makes it the mandatory duty of the trial court to bring in all parties to a controversy to the end that there may be a full determination of the matters involved when this can be done without prejudice to the rights of others or by saving their rights.
Under the provisions of the foregoing statutes the defendants were both necessary and proper parties to a complete determination or settlement of the questions involved in this action. The rule in this regard is laid down in 11 Corpus Juris, 722, in the following language:
“The general rule in regard to parties defendant is that all persons against whom the mortgagee seeks judgment are necessary parties to an action to foreclose. Every person who claims a part of the property in his own right and holds possession thereof is properly joined as defendant.”
As far as appellant Menan Milling Co., Ltd., the purchaser of the wheat in question, is concerned, in the case of Bollen v. Wilson Creek Union Grain & Trading Co., 90 Wash. 400, 156 Pac. 404, an action to foreclose a crop mortgage, where part of the crop was sold to a milling company by the mortgagor, the court held that: “In an action to foreclose a chattel mortgage, it is always proper and in most instances necessary, to make parties all who have or claim, an interest in the property, as a buyer from the mortgagor,” the court saying:
*229 “If we treat the action as one of foreclosure, appellant has done no more than bring in a party who, theoretically, at least, has possession of the property, and has the burden of accounting for it. It is always proper, and in most instances necessary, in a foreclosure proceeding’, to make all who have, or claim, an interest in the property parties, that their rights, as against the mortgagee, majr be determined. 27 Cyc. 1562; Safe Deposit Co. v. Electric Light Co., 12 Wash. 138, 40 Pac. 732. One who has put the mortgaged property beyond the reach of the mortgagee cannot complain that the mortgagee does not proceed against the property, or sue in trover. By his voluntary act he has substituted his implied promise to pay such damages as the mortgagee may sustain, and is in no position to determine for the mortgagee his choice of remedies.”
Also, in Jones on Chattel Mortgages (fifth ed.), sec. 783, it is said:
“A purchaser of the mortgaged property, or of any part of it, from the mortgagor, should be made a party defendant with the latter. Such purchaser may be held responsible, not only for the mortgaged goods then in his possession, but also for such as he may have sold before the filing of the bill, although the mortgagee might maintain an action at law for the conversion of such property.”
To the same effect, see: McDaniel v. Chinski, 23 Tex. Civ. App. 504, 57 S. W. 922; Brown v. Gatewood (Tex.), 150 S. W. 950. It is apparent from the foregoing that the Menan Milling Co., Ltd., was properly joined as a party defendant.
Concerning the joinder of E. M. Staker, the holder of a chattel mortgage upon the same property, the rule is laid down in Jones on Chattel Moi’tgages (fifth ed.), sec. 783, where it is said:
“The mortgagor and every other person having an interest in the mortgaged property should be made defendants to the bill, so that their claims and equities in the property may be cut off.An allegation that a defendant has or claims to have some interest in the mortgaged*230 property is sufficient to show that such defendant is a proper party to the action and such a complaint justifies a judgment cutting off all of his rights subordinate to the mortgage. ’ ’
It therefore follows that Staker was properly joined as a party defendant.
Appellants nest contend that several causes of action are improperly united. The complaint alleges the sale of the wheat to Menan Milling Co., Ltd., by the Olavesons and that Staker received the proceeds thereof. This action is one in equity, which being true, in order to settle the entire controversy and avoid a multiplicity of suits it was proper for the plaintiff to set out his cause of action against all of the defendants who claimed an interest in the property mortgaged or who had converted it to their own use.
In the case of Morrison v. Elzy, 190 Ill. App. 374, an action to foreclose a mortgage, the mortgagee brought an action at law, but when the case was opened the court transferred it to the equity side and directed the plaintiff to bring in new parties. In the equity suit all parties having any connection with the matter were brought in. The defendants or some of them had sold the property and converted the money, and the money produced by the sale of the mortgaged property having been traced to the First National Bank, the court held that the bank must be regarded as a trustee for the benefit of the plaintiff.
In the instant case the Olavesons sold the wheat covered by the chattel mortgage to Menan Milling Co., Ltd., which company made its trade acceptance in favor of Olaveson and Staker, the latter ultimately receiving the' money therefor. It was through the act of the Menan Milling Co.; Ltd., and Staker combined that the wheat was converted. It was through their joint act, Staker claiming the money, the proceeds of the wheat, under an alleged prior mortgage. Menan Milling Co., Ltd., claimed a right to purchase the wheat by reason of Staker’s alleged prior lien. There was therefore no misjoinder of causes of action.
"We are therefore confronted with the question of the prioxity of respondent’s chattel mortgage, which depends upon Olaveson’s right to possession or intei’est in the land upon which the crop was grown. It is Staker’s contention that Olaveson had no lease at the time that he gave the chattel mortgage to respondent, or no interest in the land upon which the crops were subsequently grown. It is conceded that a valid lease as between the parties was entered into in 1916 for a period of five years; that the Olavesons carried out the terms of the lease up to the year 1917; that the land was flooded during the year 1918; that practically no ci’op was raised in that year; that Staker and the Olave-sons met and that Staker did not insist upon the rent being paid for that year and that a conversation was had to the effect that the former lease should be canceled and a new lease entered into containing additional provisions, namely, for an increase in rental and a right to sell the premises during the life of the lease between certain times of the year. The Olavesons went right on operating the place, continued to reside upon it, plowed up considerable land, putting the same in a condition for future crops. A care
In the case of Iverson v. Soo Elevator Co., 22 S. D. 638, 119 N. W. 1006, it was held that where a mortgage was given on crops to be grown, the instrument containing a good description of the land and a statement of the year in which the crops were to be grown, it was a good mortgage if the mortgagor did in fact afterward get the land and raise a crop thereon, although he had no interest in the land at the time of giving the mortgage. To the same effect see Ludlum v. Rothchid, 41 Minn. 218, 43 N. W. 137.
We have therefore reached the conclusion that the judgment of the trial court should be sustained, and it is so ordered. Costs are awarded to respondent.