152 N.W. 684 | N.D. | 1915
This is a trial de novo of foreclosure of a thresher’s lien filed by the plaintiff against grain grown upon the farm of the defend
Section 6855: “Procedure to Obtain Lien. Any person entitled to a lien under this chapter shall, within thirty days after the threshing is completed, file in the office of the register of deeds of the county in which the grain was grown a statement in writing, verified by oath, showing the amount and quantity of grain threshed, the price agreed upon for threshing the same, the name of the person for whom the threshing was done, and a description of the land upon which the grain was grown. Unless the person entitled to the lien shall file such statement within the time aforesaid, he shall be deemed to have waived his right thereto.”1 Dahlund was in possession of and exercised full control over a threshing: machine. Defendant Iiuyssen was the owner of a farm which was being operated by Lorentzen under a croppers’ contract to the terms of which reference will be hereinafter made. Lorentzen made contract with plaintiff to do the threshing upon the farm, and in accordance with such contract plaintiff threshed all the grain for the year 1912 and shortly thereafter the defendant ILuyssen, the owner of the land, paid one half of said threshing bill according to the terms of his cropping contract with Lorentzen, who, however, failed to pay his half of said bill. Plaintiff thereupon filed a lien under said sections, naming therein, however, only the defendant Lorentzen. The trial below resulted in a judgment in favor of plaintiff against the defendant Lorentzen for the amount due,, and allowed him a lien against all of the grain grown upon said land.. Appellant in his brief raises four questions; namely, “whether plaintiff' Dahlund was the ‘owner or lessee’ 'of a threshing machine within the meaning of § 6854, Comp. Laws, 1913, and whether he1 was legally entitled to file any threshing lien whatever against anyone, — Dickey being by the terms of the conditional contract of purchase, exhibit 1, the real and legal owner of the machine at all times so far as the evidence shows
“Whether the alleged lien statement was ever ‘verified by oath’ as required by the statute;
“Whether the alleged lien complies with the statute, which requires it:
“Whether a $25 attorney’s fee can be charged in foreclosing a threshing lien and including in the costs taxed.”
As already intimated, Huyssen was the owner of the land and Lorentzen was his lessee under a cropping contract, sometimes erroneously called a lease. Under the terms of this agreement, Lorentzen was to do all of the work incident to the planting and care of the crops, and to “thresh and secure the crops grown thereon,” but “party of the first part (Huyssen) is to pay one half of twine bill and one half of threshing machine bill,” and it was agreed that until a final settlement and division
Again, if appellant’s theory is correct and the landlord must be named in the lien, by analogy it would be contended that every mortgagee or any person claiming an interest in said grain would likewise have to be named, and, if the encumbrances against the property were more than the value of the grain, the thresher would be entirely without remedy,
Respondent will recover his costs in this action, less the sum of $12.50, which we consider a fair proportion of appellant’s expense upon the modification.