170 N.W. 635 | N.D. | 1918
Lead Opinion
Appeal from the district court of Grant county, from an order denying a motion for a new trial, Honorable J. M. Hanley, J udge.
The action is one in conversion. In its complaint for first cause of action, the plaintiff, in substance, alleges that one Henry Ehlert exe-
The appellant makes but two assignments of error, viz.: First, the court erred in directing a verdict in favor of the defendant; second, the court erred in denying motion for a new trial. The appellant relies upon the first assignment of error. The defendant, at the close of plaintiff’s case, made the following motion for a directed verdict, which was granted:
“The defendant at this time moves the court to direct the jury to return a verdict for the defendant on the ground and for the following reasons: First, that the complaint does not state facts sufficient to constitute a cause of action, in that no demand is alleged. Second, on the ground that the plaintiff has wholly failed to prove a cause of action-against the defendant, for the reason that it has shown no proper demand for the possession of the said grain or any part thereof in accordance with law. Third, that the pretended demand which is alleged to have been sent through the mail is too indefinite and uncertain in its terms, it specifically demanding not only the grain raised and harvested by the man Ehlert, but by all other persons on said section, it*272 being definitely shown by the testimony that other parts of the sections of land described in the demand were occupied and in crop by other parties. Fourth, for the reason that there is absolutely no evidence to determine what portion of the flax alleged to have been taken to the defendant elevator was raised on the land described in one of the mortgages or the other, and that this is necessary under the showing. Fifth, that the description of the land on which the crops were to be grown on which a mortgage is claimed and on which this action is commenced, is too indefinite and uncertain, and does not therefore bind the defendant, who is' an innocent purchaser for value; the description of the land being as follows: ‘Also all the crops of every name, nature, and description, which have been or may be hereafter sown, grown, planted, or cultivated, and the crop harvested therefrom in the year of 1916 on land in section 25, township 134, range 91, west’ as contained in exhibit ‘F,’ there being no description of-the quarter section of land, or any other part of the section, and it not being shown affirmatively that the man Henry Ehlert had no interest in at least a half section of the said land, or any crops raised thereon; and exhibit ‘E,’ being more definite than that because it describes it as land in sections 18 and 31, township 134, range 90, and not describing any particular quarter, and it being affirmatively shown that the man Henry Ehlert only pretended to farm one quarter section of said two sections. On the further ground that the demand offered in evidence asks for and demands all of the grain raised by Henry Ehlert, or others, on section 25, in township 131, range 91, same not being the land described in the mortgage. On the further ground that the undisputed evidence shows that the attorney for the plaintiff has had in hi's possession or under his control, through the sheriff, all of the other property described in the mortgage and has never accounted therefor. . . . And on the further ground that the undisputed testimony shows that there never was a division of the grain, nor passing of title to the grain on division to the plaintiff. The Court: The motion is granted.”
An examination of the motion for a directed verdict will disclose that several of the reasons set forth therein why the verdict should be directed were based upon the assumption that no legal.or sufficient demand by the plaintiff of the defendant had been made for the flax in question. We think the testimony is sufficient to show a demand, if it
Defendant challenges the validity of each.of the chattel mortgages on the grain on the ground that the description of the land in said mortgages, upon which the grain in question grew, is too indefinite and uncertain, and therefore not binding on the defendant on the ground that he is an innocent purchaser for value. There are two chattel mortgages each covering crops on this land. Each contains the following
In its motion for a directed verdict, the defendant also relied upon the proposition that the plaintiff had, in his possession or under his-control, other property described in the mortgage exclusive of the crop which had been accounted for. The defendant, however, did neither plead nor prove the value of such property, nor ask, in its prayer for relief, that the plaintiff first be required to apply the value of all such other property upon the obligation sued upon before invoking liability against the defendant for the value of the flax in question. The defendant not having pleaded such facts, and having demanded no relief in this regard, it would be entitled to no relief upon the ground of the failure of plaintiff to account for the other property referred to.
Nor the reasons above stated, it was not error for the trial court to direct a verdict for defendant. The order of the trial court denying plaintiff’s motion for a new trial -is affirmed, with statutory costs of appeal.
Concurrence Opinion
(concurring). I concur in the conclusion reached in the opinion prepared by Mr. Justice Grace, viz., that the description of lands contained in the chattel mortgages is too indefinite to constitute constructive notice to a purchaser of the flax- involved in this controversy.
The mortgages involved in this controversy do not state any specific kind of grain, — they cover “all crops of every name, nature, and description.” They do not purport to give definite descriptions of the lands on which the grain is growing,.or is to be grown; neither do they state the number of acres intended to be covered by the mortgages. The land intended to be covered might have been 1 acre, 10 acres, 40 acres, or any other quantity which might he located within the section or sections mentioned in the mortgages. It might have been all in one contiguous tract, or it might have consisted of several noncontiguous parcels, situated in different parts of the section or sections mentioned in the mortgages. There is no showing that the mortgagor lived upon any of the lands in question, and .there is no contention that he owned any part of them. The evidence offered by the plaintiff tended to show that the mortgagor during the year 1916- cropped some lands situated in the sections mentioned in the mortgages; that he raised and harvested some 50 acres of flax in Morton county, and some 40 acres of flax in Hettinger county; that he had a one-half interest in, and received one-half of, the flax raised in Morton county; and that he received the flax from the 25 acres of the 40-acre field in Hettinger county; and that the landlord received the flax from the remaining 15 acres.
As was said by the supreme court of our sister state: “It would be imposing too great a burden upon third parties to require them to ascertain, before purchasing grain offered in the open market, what real property the mortgagor was in possession of, and that such grain was grown upon land in the actual possession of such mortgagor. While third persons may be required to ascertain, at their peril, that grain offered for sale has not been grown upon certain premises- fully described in the mortgages, they certainly cannot be required to do so when no such description is given.” Commercial State Bank v. Interstate Elevator Co. supra.