224 P. 659 | Mont. | 1924
delivered the opinion of the court.
Claiming that under the terms of the contract hereafter referred to she was the owner of and entitled to the proceeds of aT the grain grown during the year 1921 upon the land therein described, plaintiff brought this action to recover the same from the defendants, who were in possession thereof, according to her allegations. The case was tried without a jury, and at the close of the testimony the court found the issues for the defendants and a judgment of dismissal was entered, from which the plaintiff has appealed.
Neither the plaintiff nor the defendant made a request for findings of fact and conclusions of law at the close of the evidence, and the trial judge did not make any, but only entered
Since no question was raised as to the form or sufficiency of the pleadings and the action was tried on the theory that it was one in conversion, we shall so treat it.
The facts developed at the trial were substantially as follows: On January 20, 1919, the plaintiff, who was the owner of a farm located in Daniels county, entered into a written contract with Fritz Mortinson, by the terms of which the latter was to well and faithfully till and farm the land during the years 1919, 1920 and 1921, commencing on March 1, 1919, and ending on March 1, 1922, in good and husbandman-like manner and according to the usual course of husbandry. Mortinson agreed to sow and plant the land in such crops as plaintiff should direct, and to furnish all tools, implements, machinery and hired help, and cultivate the land to the best advantage and according to his best skill and judgment. The contract enumerated many things to be done by Mortinson in the way of keeping up the premises which it is not necessary to refer to. Amongst its provisions is one that he shall not sell or remove “any produce of said farm * * * until final settlement ■without the written consent” of plaintiff, “and until such settlement, the title and .possession of all * * * grain * * * grown or .produced on said premises shall be and remain in the party of the second part [plaintiff], and said party of the second part has the right to take and hold enough of the crop * * * and products that would on the division of the same belong to said party of the first part [Mortinson], to repay any and all the advances made to him by the party of the second part, and interest thereon at twelve per cent per annum, and also to pay all indebtedness due said party of the second part by said party of the first part, if any there be.”
Plaintiff agreed to furnish the seed necessary to sow and plant the land and .pay one-half of the threshing bill and also
The compensation of the parties for their several obligations is provided for as follows: “In consideration of the faithful and diligent performance of all the stipulations of this contract by the party of the first part, the party of the second part agrees, upon reasonable request thereafter made, to give and deliver on said farm, the one-half of all grains, vegetables, so raised and secured upon said farm during said season 1919. The party of the first part to deliver the share of the party of the second part as [at?] the elevator.”
At the time of the execution of this 'Contract plaintiff sold to Mortinson some farm equipment, consisting of horses, harness and machinery, which was still on the farm at the time of the delivery of the grain hereafter referred to, and at that time there was still due to her over $1,000 on the purchase price thereof.
On September 21, 1920, Mortinson executed and delivered to the defendant State Bank of Madoc a chattel mortgage to secure a note for $450, due one year after date, upon certain personal property, and also “all of mortgagor’s undivided one-half interest in all crops of every kind, nature and description, cultivated or harvested during the year 1921” upon the land described in the contract, which was duly filed in.the proper office, and of which the defendant elevator company had actual, timely notice.
In the fall of 1921 Mortinson threshed all grain grown upon the land during that season. The threshing commenced September 2 and was finished September 4. Under direction of Mortinson all the grain was hauled directly from the threshing machine on plaintiff’s farm and delivered to the defendant Occident Elevator Company at Madoc, where it was received by James Durkin, as its agent. As the grain was delivered, scale tickets or checks were issued to the drivers of the teams hauling the grain. These checks were dated on the day the delivery
James Durkin, manager for the elevator company, testified that about July 20, 1921, the plaintiff came to see him at the elevator relative to the division of the grain between herself and Mortinson for the year 1921, and in the -course of the conversation stated to him “that she had always divided her grain out on the farm at the machine, but this year she wasn’t going to have that done; she was going to have it divided — if she could, have it divided in the elevator.” Witness advised her that that was the -common practice and plaintiff then stated that would be satisfactory. This witness further testified that about the 10th of September, 1921, plaintiff again came to see him at the elevator about her grain, when he advised her that
On August 17, 1921, the plaintiff wrote to Mortinson: “Your letter about the twine and grain hauling is at hand. * * * It will suit me fine to have our grain hauled to the elevator right from the machine.”
Carl B. Boss, cashier of the defendant bank, testified that he did not know of the indebtedness of Mortinson to plaintiff until advised of the same by the plaintiff in the latter part of September, after all payments for the grain had been made, and did not know that plaintiff was claiming the other half of the grain at the time the elevator company issued the checks to the bank and Mortinson.
1. There is some discussion in the briefs of counsel as to the nature of' the contract which was entered into between the plaintiff and Mortinson, but in the view which we take of the case it is not important to name this instrument as a “lease” or a “contract” of another nature, or to determine whether the parties thereto sustain the relation of “landlord and tenant,” “owner and cropper,” or “master and servant.”
The clear intent of the instrument was that after the division of the grain one-half of it should belong to the plaintiff
2. But the plaintiff claims that, since Mortinson was indebted to her in a sum of more than $1,000 on account of the farming equipment which she. sold to him, she was the owner of and entitled to the possession of the other half of the grain crop, or its proceeds, for the payment of that amount under the provisions of the contract, to the effect that until final settlement the title and possession of all the crop should remain in
We think the contention that the above-mentioned provision amounts to a chattel mortgage must be sustained. A mortgage is defined by section 8246, Revised Codes of 1921, to be “ a contract by which specific property is hypothecated for the performance of an act, without the necessity of a change of possession.” The indebtedness from Mortinson to plaintiff had no connection with the operation of the farm. As to this amount the reservation of title and possession of the part of the grain which belonged to Mortinson upon division was an attempt by the contract to create in plaintiff the right to satisfy her claim out of this grain or its proceeds. This constituted a mortgage.
Identical provisions in similar contracts have been construed in different jurisdictions and have generally been held to be in effect chattel mortgages. In the case of McNeal v. Rider, 79 Minn. 153, 79 Am. St. Rep. 437, 81 N. W. 830, the supreme court of Minnesota had” under consideration a contract identical with this one, and held: “A contract for the cultivation of a farm on shares, in and by the terms of which the landowner reserves the title to the cropper’s share of the crops raised, as security for advances made to him, is in legal effect a chattel mortgage, in so far as it operates as security for the payment of such advances.” This decision was based upon prior holdings of that court to the same effect in Wright v. Larson, 51 Minn. 322, 38 Am. St. Rep. 504, 53 N. W. 712; Merrill v. Rossler, 37 Minn. 82, 5 Am. St. Rep. 822, 33 N. W. 117; Strangeway v. Eisenman, 68 Minn. 395, 71 N. W. 617; Anderson v. Liston, 69 Minn. 82, 72 N. W. 52.
In Minneapolis Iron Store Co. v. Branum, 36 N. D. 355, L. R. A. 1917E, 298, 162 N. W. 543, the contract under con
In the case of Hudson v. Glens Falls Ins. Co., 218 N. Y. 133, L. R. A. 1917A, 482, 112 N. E. 728, the court held that, where a tenant and landlord contracted that title to hay to be grown on leased premises should remain in the landlord as security for the faithful performance of the contract by the tenant until fully performed, the contract was in effect a mortgage on the hay. To the same effect is Kelley v. Goodwin, 95 Me. 538, 50 Atl. 711.
The ease of Cook-Reynolds Co. v. Wilson, 67 Mont. 147, 214 Pac. 1104, involved the determination of whether or not a contract constituted a lease or cropping agreement. This contract contained a reservation of title to the grain crops grown on the premises described, having the same effect as the one here under consideration. In holding that the contract was a lease notwithstanding this reservation, after quoting from Strangeway v. Eisenman, supra, the opinion says: “We agree with the Minnesota court that the only effect that can be given to the provision for title to remain in plaintiff is to construe it as providing a lien to secure delivery to plaintiff of its share of the grain crops.”
3. To meet the contingency of the contract being held to be a chattel mortgage so far as it relates to the $1,000 claim, counsel for plaintiff says that, even though the contract was in effect a chattel mortgage, and should have been executed and filed as such in order to entitle plaintiff to a valid lien upon the grain in question as against the defendants, still the evidence shows that they had actual notice of the provisions of the contract or of sufficient facts to put them on inquiry, and therefore cannot take advantage of the fact that it was not so executed and filed.
We do not deem it necessary to pursue this subject, for we are confronted with the following provisions of section 8290, Revised Codes of 1921: “A mortgage may be given upon a growing crop, or a crop to be grown, and the lien thereon continues after severance, whether remaining in its original state or threshed or otherwise prepared for market; provided, however, that the lien of such mortgage shall attach only to crops next maturing after the execution of such mortgage, except in case of mortgages to secure the purchase price or rental of land upon which such crops are to be grown.”
Although the defendants may have had actual notice of the terms of the contract, so that they would have been bound t-hei'eby as to the crops grown upon the land which matured next after its execution, their rights could not be affected beyond that time, since under the express provisions of the statute the lien of the mortgage did not and could not extend beyond that crop, and therefore the plaintiff was not entitled to the possession or proceeds of Mortinson’s half of the 1921 grain crop as against them.
Affirmed.