69 N.W. 44 | N.D. | 1896
The facts which we deem necessary to a proper disposition of this case, as we gather them from the record, may be briefly stated as follows: In the month of May, 1894, one Lee executed and delivered to plaintiff his promissory note, payable to the plaintiff, for $61.20, and to secure the payment of such note said Lee made and delivered to the plaintiff his chattel mortgage, describing certain land in Richland County, and
The defendant’s counsel present the principal question to be determined in the following language, which we quote from their brief: “It will be perceived that but a single question is presented for decision upon this appeal, viz.: was the mortgagor’s possession of the land, and the crop produced thereon by his labor, sufficient evidence of his title to such crop, in the face of the proof that the land at all times belonged to another?” Counsel .for defendant contend that Benson’s ownership of the land carried with it, as an incident, the ownership of the crop raised upon the land; and, secondly, that in conversion the burden is upon the plaintiff to show ownership and the right of possession, and that to defeat the recovery the defendant will be permitted to show title in a stranger. To show that the owner of the land is entitled to the products thereof, counsel cite § 3316 of the Revised Codes, which reads: “The owner of a thing owns ajso all its products and accessions.” The principles of law contended for by counsel as above stated may be conceded, without, as we think, accepting the conclusions for which counsel are contending. It is an essential rule of the common law, and recognized as such in the provision of the Code above cited, that the
The note matured in November, 1894. The grain was delivered to defendant’s elevator by the mortgagor in September of the same year. Upon these facts, counsel make the point that, when the conversion took place, the defendant did not have either actual possession or the right thereto, and hence that the action will not lie, under an established rule of law applicable to cases of conversion; citing Parker v. Bank, 3 N. D. Rep. 87, 54 N. W. Rep. 313, which announces the familiar general doctrine contended for. But we think the rule does not apply, or, rather, that it cannot be invoked by defendant to defeat this action. A stipulation is contained in the mortgage whereby the mortgagee is empowered to take possession of the grain at once, in the event of a sale or other disposition of the grain being made. The condition upon which this right came into existence happened, and eo instanti the mortgagee’s right to take possession became operative. The defendant bought the grain with constructive notice of the mortgage, and becomes chargeable with notice of the stipulation to which we have referred. True, defendant acquired title as against the mortgagor (see Sanford v. Elevator Co., 2 N. D. Rep. 6, 48 N. W. Rep. 434), but took such title with the burden of the mortgage.
Finding no error in the record, we shall affirm the order and judgment appealed from.