October 30, 1926, Ernest Branz, plaintiff and appellant, leased a 200-acre farm to Ray R. Hutchinson from November 10, 1926, to March 1, 1932. The written lease was not recorded in the office of the county clerk until February 9, 1931. By its terms the tenant was to pay a cash rent of $150 each year for the pasture and was to deliver the landlord’s two-fifths of the grain at market at Gresham, free of expense to the landlord. The lease was complied with until the fall of 1931 when the tenant failed to pay the cash rent for that last year and failed and refused to gather some of the landlord’s share and1 to deliver more corn belonging to the landlord. The landlord gathered and delivered said corn. The tenant in December, 1931, and in March, 1932, sold and delivered to two grain companies in Gresham corn raised on the land in 1931, valued at $199.85. When a controversy arose as to the ownership of these products, the grain •companies paid the money into court where, by stipulation of the parties, it abides the result of this suit.
On June 19, 1931, Hutchinson gave to Blanche Davidson his note for $500 and, to secure it, gave her his chattel mortgage upon the then growing crops, raised on the leased premises, which mortgage was duly recorded.
This suit is a controversy between the landlord, Branz, and the chattel mortgagee, Davidson, for priority of lien against the fund in court. The district court gave judgment to the chattel mortgagee. The landlord appealed. In effect Hutchinson is out of the picture. The cause was tried to the court without a jury.
Section 36-301, Comp. St. 1929, as theretofore existing, had been amended by the legislature in 1927. Laws, 1927, ch. 36. The amendment inserted into the section as theretofore existing this provision: “Provided, that the filing of a lease containing an agreement for the execution of a chattel mortgage, or, therein constituting a chattel mortgage, on unplanted crops shall constitute notice of such an obligation and lien and protect the lessor against chattel mortgages given to other creditors by the lessee.”
The question for determination in this case is the proper interpretation of chapter 36, Laws 1927, and the application thereof to the facts in this controversy. The act was entitled “An Act to amend section 2550, Compiled Statutes of Nebraska for 1922, relating to chattel mortgages; providing that the recording of a lea'se containing an agreement for a chattel mortgage on unplanted crops shall constitute notice; and to repeal said original section.” It was passed and approved, without the emergency clause, on April 12, 1927, and became effective July 23, 1927. Its sole effect was to add to the section amended (now section 36-301, Comp. St. 1929) the words contained in the proviso hereinbefore quoted. We assume that the addition which the legislature endeavored to
In Brown v. Neilson,
In the Brown case the action was between the lessor and lessee, both of whom, at all times, had actual knowledge of the provisions of the lease. One reason suggested for this determination, advanced by Cobb, J., in Cole v. Kerr,
In Battle Creek Valley Bank v. First Nat. Bank of Madison,
“An instrument which assumes, to convey or encumber a thing not in esse is a mere executory contract, which does not, ‘without a new intervening act,’ create any legal right to, or interest in, the thing to which it relates.
“A provision in a mortgage of domestic animals, assuming to give the mortgagee a lien upon the increase to*701 be thereafter begotten, is nothing more than an agreement for a lien which, without possession, vests no legal right to, or interest in, such increase.”
See, also, State Bank of Gering v. Grover,
It would seem obvious, under the foregoing authorities, that disabilities or limitations which inhere in, or are of the essence of, contracts which pertain to property not in esse are in no manner removed or remedied by legislation, the sole purpose of which is to charge third persons with constructive knowledge or notice of the existence of such contracts upon compliance with the provisons of such legislation.
As to the facts involved in the instant case, it may be said that on June 19, 1931, the tenant lessee gave a valid chattel mortgage to Davidson, defendant, to secure a $500 note. The tenant sold and delivered grain to the two grain companies. The purchase price of both deliveries amounted to $199.85. Both plaintiff Branz and Davidson asserted their respective liens against these purchasers, who paid the funds into court to abide the result of the suit. These purchasers were not chattel mortgagees, and, it is to be remembered, they were not within the purview of the restrictive words of the statute, “and protect the lessor against chattel mortgages given to other creditors by the lessee.” Obviously, as one who purchases without constructive notice is presumed to be a purchaser without notice (Rogers v. Pierce,
It would seem the fair conclusion that the effect of the statutory language under consideration is but to make the chattel mortgagee the exception to the rule announced in the cases cited, which is otherwise continued in full force and effect. As to these purchasers it was
But, waiving the effect of the situation above suggested, it may be said that security contracts have been the subject of legislative consideration, and legislation on this subject, though now comprised in a number of separate sections and provisions, constitutes a special subject, enacted for a special purpose, and evidencing a definite legislative policy.
Thus, in section 36-208, Comp. St. 1929, we have provisions governing when the vendor is secured by a sale upon condition; in section 36-301 we have covered the situation when security is furnished by the owner of the property in the form of a chattel mortgage. The legislative object and purpose in both is to provide security for the creditor party to this contract by a claim upon property involved. It is clear that the situation demands a similar rule of construction applicable alike to each of the sections in determining whether these respective provisions are to be deemed prospective or retrospective in their application.
In Blunk Bros. v. Kelley,
Reading section 36-208 in connection with 36-301, as it existed before the amendment, in view of legislative policy and purpose evidenced, what possible reason can be suggested for the application of a different rule of construction as to the retroactive application of the statute involved in the case at bar.
We do not feel that we are going too far afield in thus construing sections 36-208 and 36-301 together. A statute will be read in connection with all other enactments upon that subject. State v. Omaha Elevator Co.,
Nor does it appear that the clause under consideration is to be given any different construction because of its subsequent adoption as an amendment. “The section of an act properly amended should be construed precisely as though it had been originally enacted in its amended form.” State v. Hevelone,
If this present section 36-301 had been originally enacted as an entirety in 1866, would it suggest a retroactive construction in the light of the principles announced in Blunk Bros. v. Kelley,
Indeed, the general rule appears to be that, where an amendment leaves certain portions of the original act unchanged, such portions are continued in force with the same meaning and effect they had before the amendment. So, where an amendatory act provided that an existing statute should be amended to read as recited in the amendatory act, such portions of the existing law. as are retained either literally or substantially are regarded as a continuation of the existing law and not a new enactment. 59 C. J. 1097.
“In accordance with the rule generally applicable to
“(a) General Rule Applicable. — -(1) The rule of statutory construction that the statute operates prospectively, unless its terms indicate a different intent, applies to an amendment. Erie County v. Lowenstein,
“(b) Presumption. — There is a presumption that an amendment to a statute is prospective. American Surety Co. of New York v. Alamo Iron Works (Tex. Civ. App.)
In this case the plaintiff must recover as against the purchasers of this corn in his own right or not at all. His contract ought not to be enlarged, by construction, to vest him with greater rights than those existing when the contract was actually entered into and made. It follows that the filing of the same, or a copy thereof, should not operate to vest him with any additional rights and powers that did not exist when he made the contract. To do so, it is admitted, would, in effect, impair the obligations of the contract in the constitutional sense of that term which would constitute a violation of the rights, not only of the
The legislature did not attempt to apply the amendment of the chattel mortgage action (Comp. St. 1929, sec. 36-301) to existing contracts. The amendment was designed to affect only such contracts as were entered into after it took effect. Blunk Bros. v. Kelley, supra.
The judgment of the district court is
Affirmed.