75 N.W. 809 | N.D. | 1898
Lead Opinion
In this action a general demurrer was interposed to the complaint, and the same was overruled by an order of the trial court. Defendant appeals from the order.
In the disposition of the case in this court the parts of the complaint necessary to be discussed are as follows: “That on or about the 16th of October, A. D. 1894, James Doyle and others made, executed, and delivered to the plaintiff a certain promissory note for $896, due October 16, 1895, with interest at 12 per cent., and made, executed, and delivered to secure the same a chattel mortgage, also to the said plaintiff, upon all grain and ci'ops, of every name, natux'e, and description, to be grown or harvested during the seasons of 1895, 1896, and each and every succeeding year thereafter, until said debt should be fully paid, upon the southwest quarter of section 14, and the noi-theast quarter of section twenty-three, all in township one hundred and sixty, range sixty, (S. W. % of Sec. 14, and N. E. % of Sec. 23, all in Tp. 160, range 60,) in Cavalier County, North Dakota; that on or about October 16 and 17, 1896, default had been made in the terms and conditions of said mortgage, by failure to pay the debt, or any part thereof, which the same secured at its matux'ity, by reason whex'eof the said plaintiff, E. I. Donovan, was entitled, under the conditions of said mortgage, to the immediate, exclusive, and absolute possession of all wheat grown during the season of 1896 by said James Doyle upon the said S. W. % of Sec. 14, and said N. E. % of 23, all in Tp. 160, i'ange 60, in
Counsel for the appellant claims that the complaint contains no allegation that the mortgagor ever owned the property covered by the mortgage. This criticism, we think, is found upon a misapprehension of the meaning and effect of the language employed in the complaint. The property in queston, and embraced in the mortgage, is a certain crop grown by James Doyle, one of the mortgagors, in the year 1896, upon the land described in the mortgage. With respect to such crop the complaint avers that “the defendant unlawfully appropriated and converted to its own use about 600 bushels of said wheat grown by the said Doyle upon said premises during the year 1896.” The statement of fact that the grain was “grown by said Doyle” is certainly broad enough to allow proof of the several acts done and performed by Doyle in growing the grain, such a planting, cutting, etc. We think that these words fairly import that the grain was produced by agencies set in motion by the mortgagor, and also
The complaint is further criticised because — quoting from the brief of counsel — it “fails to aver that at the time the mortgage was executed the chattels mortgaged were the property of the mortgagor.” If this objection to the complaint is valid, it follows that no mortgage of a crop not yet sown will operate to create a lien on a future crop, when the same comes into existence by the agency of the mortgagor. It is clear that a crop not planted when a mortgage thereon is executed is property not in existence at that time, and hence cannot then be the property of the mortgagor. It seems hardly necessary to say that in this state a wide departure has been made, by virtue of statutory provisions, from the common law rule that a mortgage cannot be made upon property which is not owned by the mortgagor, and which is not in esse, when the mortgage is executed. The exact opposite is the rule in North Dakota. Revised Codes, section 4680, reads as follows: “An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the thing to the extent of such interest.” This statute incorporates a rule in equity, and is plain and unambiguous in its terms, and clearly gives its sanction to mortgages made upon property which never comes into existence until a date subsequent to the execution of the mortgage. The Supreme Court of the Territory of Dakota so construed the statute and upheld such
A further contention is that the complaint fails to state, except by mere recital, which is bad pleading, that by the terms of the mortgage the plaintiff was authorized to take possession of the mortgaged property upon default made in paying the debt. The complaint is somewhat obscure in this respect, in view of the inartificial forms of expression adopted by the pleader. No copy of the instrument is annexed to the complaint, and the plaintiff has elected, as he had a right to do under established rules of pleading, to plead its legal effect. See Brown v. Champlin, 66 N. Y. 214. In attempting to set out the feature of the mortgage we are here considering according to its legal effect, the pleader, after setting out the fact of the mortgagor’s default in paying the note secured by the mortgage, proceeds as follows: “By reason whereof the said plaintiff, E. I. Donovan, was entitled, under the conditions of said mortgage, to the immediate, exclusive, and absolute possession of all wheat grown during the season of 1896 upon the said,” etc. (describing the land.) This averment, when liberally construed, is, in our opinion, neither a mere conclusion of law, nor the mere conclusion of the pleader, as to the effect of the stipulation written in the mortgage. We regard the language, while it is inapt, as an affirmation of a fact; i. e. as a statement of the true legal effect of the language used in the mortgage.
Counsel contends further that the complaint is vulnerable for the reason that it omits to allege that the mortgage was ever filed for record, or that the defendant had notice or knowledge of its existence at any time. In view of the averment that the defendant, as a matter of fact, unlawfully converted the grain and appropriated it to its own use, we think the omission is not fatal. These allegations charge a tortious act, — a distinctly wrongful and illegal act. The demurrer admits this charge to be true, and, if it is true, the plaintiff should recover in the action. Whether or not the charge is true is a question of fact, which can be investigated upon issue joined; and for this purpose defendant, on application therefor, should be permitted to serve an answer traversing the averments of the complaint. Upon such issue, if it is made, the trial court must determine which side has the burden of proof. No such question is now before this court.
The order overruling the demurrer will be affirmed.
Dissenting Opinion
dissents, on the ground that in his judgment the complaint does not state facts sufficient to constitute a cause of action.