This is an action for damages 'based on the alleged conversion of grain. The plaintiff is the administrator of the estate of one M. J. Forde, deceased. The defendant is the administrator of the estate of one E. Ertresvaag, deceased. Forde executed and delivered to Ertresvaag a chattel mortgage on the following described property, viz: “All the crops that shall be sowm planted, grown, raised or harvested during the year 1903 on the N. E. quarter of section 7, township. 162, range 78, now in my possession in the county of Bottineau and state aforesaid.” The mortgage was given and dated on December 14, 1903, and was to
This finding was made on the theory that the defendant did not have a mortgage on the crop grown on the land in the year 1904. We are satisfied that the evidence shows the mortgage given was intended to cover and did cover the crop to be raised in the year 1904. In the first place the indebtedness secured by the mortgage was evidenced by a note of the same date as the mortgage which was to become due in October, 1904, and these facts are recited in the mortgage. Further, the mortgage recites that it was given on “all crops that shall be sown, planted, grown, raised, or harvested during the year 1903.” It is plain that a crop in this latitude cannot be planted in December, and that a mortgage given in that month cannot possibly become a lien on a crop to be grown during that year. Hence it is too clear for doubt that the parties could not have intended the giving or taking of a mortgage on the crop of 1903. It is equally clear that a mortgage on the crop of 1904 must have been intended by the parties. Section 6131, Revised Codes 1905, provides that “a lien by contract upon crops shall attach only to the crop next maturing after the delivery of such contract except in the case of liens by contract to secure the purchase price or rental of the land upon which such crops are to be grown.” The crop of 1904 was the only one that could next mature upon the land when the mortgage was given, and from the language of the mortgage, considered in connection with the provisions of this statute, it cannot be presumed that a mortgage was intended to be given on a crop which was to mature after the year 1904. It cannot be presumed that the parties intended to give a mortgage which would be ineffectual. In view of the language of the mortgage and the provisions of the statute, we think that the parties intended to give
The respondent’s contention is that the mortgage cannot avail the defendant as a defense to the alleged cause of action for conversion of the grain until the mortgage is reformed in a court of equity so as to express the intention of the parties. This cannot be upheld, inasmuch as the mortgage on its face shows that a mortgage for 1904 was intended. That contention, however, would not be sustainable as a matter of law if the mortgage had by mistake shown that it was given upon the crop of 1904. The defendant would not be guilty of converting the grain, if he had a legal or equitable right to the possession thereof. Any fact that will negative a wrongful. taking will defeat a stated cause of action for conversion. If the panties intended that a mortgage was to be executed for the crop of 1904, and it is shown that such intention was not expressed on account of a mutual mistake, this fact could be shown as an equitable defense, without a previous reformation of the mortgage. In Pomeroy on Code Remedies, section 92, ft is «'aid: “There does not seem to be any limit to the use of such defenses, other than is found in the very nature of equity jurisprudence itself. Whenever equity confers a right, and the right avails to defeat a legal cause of action — that is, shows that the plaintiff ought not to recover in his legal action — then the facts from which such right arises may be set up as an equitable defense in bar.’’
In Plano Mfg. Co. v. Daley, 6 N. D. 331, 70 N. W. 277, it was held as follows in a claim and delivery action: “Where, in such an action, plaintiff bases his claim to the property upon a chattel mortgage executed by defendant, and defendant in his answer admits the execution of the mortgage and denies all the other allegations of the complaint, and also pleads certain facts upon which he predicates fraud in procuring the mortgage, if the evidence fails to establish fraud, but does show that defendant never intended to give, and plaintiff never intended to take, a mortgage upon the property in controversy, and that the mistake was not ithe result of defendant’s negligence, then defendant will be entitled to a verdict in his favor, notwithstanding his failure to prove fraud.” In that case the defendant was claiming that certain property had been-
The other assignments of error become immaterial, in view of the fact shown that the defendant had a mortgage on the crop of 1904 under the evidence.
The judgment is reversed, and the cause remanded for further proceedings.