McFarland, J.
In 1893 James Murphy was the lessee of a parcel of inclosed land called field No. 1. D. W. Cole owned adjoining land called field No. 2. Murphy had executed a chattel mortgage of the crop of grain growing on his said leased land to the plaintiff, *29Horgan, to secure eight hundred dollars. In July Murphy commenced harvesting the crop and hauling it away from the land on which it had grown onto the said land of Cole, and finished doing so in the early part of August. On September 1st Cole brought suit against Murphy and attached the grain. Jensen and Lauritzen also brought suit against Murphy, and upon either the 1st or 2d of September attempted to levy an attachment on said grain, but it is contended that for certain reasons this last attachment was invalid. However, Cole recovered judgment in his case against Murphy on September 7th, and Jensen and Lauritzen recovered judgment on September 8th; and executions in both cases were immediately issued and levied on the grain—the one on September 7th and the other on September 8th—and the grain was sold to satisfy these executions by the defendant, Zanetta, who was constable, and who justifies under these attachments and executions. On September 15th plaintiff served a notice upon defendant, claiming “ the possession of or a lien” upon the grain by virtue of the said chattel mortgage. Defendant proceeded and sold the grain under the executions without regarding the alleged mortgage lien; and thereafter plaintiff commenced this action to recover the eight hundred dollars secured by said mortgage, with interest and damages. The court rendered judgment for plaintiff for five hundred and thirty-five dollars and seven cents, being the value of the grain as found by the court, together with damages, attorneys’ fees, and costs. Defendant appeals from the judgment and from an order denying a new trial.
Section 2972 of the Civil Code, as amended in 1878, provides that the lien of a mortgage on a growing crop continues “ as long as the same remains on the land of the mortgagor.” Prior to 1878 the lien continued only until the crop was severed from the land. In the case at bar. the crop had been removed from the land of the mortgagor at the time the attachments and executions were levied on it by the appellant; therefore, the lien of *30the mortgage had prima facie been extinguished. It therefore devolved upon respondent to remove this prima facie case by showing that the case at bar is an exception to the general rule. This he attempted to do by evidence of facts which, he contends, estop appellant from denying the continuance of the lien. The facts substantially are these: The land on which the crop was raised was rough and hilly, and not suited to the placing of a machine for threshing; and, after Murphy had commenced harvesting, there were conversations between him and Cole which resulted in Murphy hauling the grain onto Cole’s land, wnich was level and adapted to the use of a threshing-machine. The court finds that Cole “ represented ” to Murphy these facts about the character of these two different tracts of land as to their respective adaptability to threshing, and requested him to take the grain onto Cole’s land; and, as there was no conflict of evidence on the point, the finding must be taken as correct. It is quite evident, however, that Murphy, who lived on field No. 1, must have had as full a knowledge of the situation as Cole; and the court finds that “ the fact was as represented by Cole, owing to the roughness of the ground in said field No. 1.” It is not found that Cole made any false representation in the premises. The court, however, found that Cole made the representation, “ having then actual knowledge of said mortgage,” and for the purpose of defeating the same; but we find no evidence to support said finding in the statement on motion for a new trial which expressly declares that it contains “ all the testimony given by both parties on the subject of the removal of the grain or the knowledge of Cole of plaintiff's mortgage.” Cole testified positively that he knew nothing of the mortgage when the grain was removed, and did not know of it until about the time of the attachment, which was September 1st.
The only other evidence on the subject is the testimony of the witness J. W. Rowe, who said that he “had a talk with Cole about September 4, 1893, and about *31one week before, when Cole came to see me about threshing his grain; the first talk I had with Cole was about the 19th of August; this was on the Saturday two weeks before the day I threshed; I threshed on September 4, 1893.” He further said that at this conversation Cole said that “ I guess Murphy has done me up for the rent”; that Horgan had a mortgage on record, and that he (Cole) had been to Hollister and had seen it; but that he was going to town to see his lawyer, and would try to hold the grain, and would “ run a bluff on Horgan anyhow.” This witness (Rowe) in an affidavit made on motion for a new trial specifically states that Cole did not say that he knew of the mortgage before the removal of the grain onto his land, and that the conversation was on the second Saturday before September 4th; but, leaving that out of view, his testimony as given at the trial is not at all to the point that Cole knew of the mortgage at the time he talked with Murphy about moving the grain. That was in July, and the conversation between Rowe and Cole—putting it at the very earliest period—was the 19th of August, which was some time after all the grain had been removed by Murphy to Cole’s land, and long after Murphy had commenced to remove it. Indeed, the conversation with Rowe is strong to the point that Cole had then just discovered the existence of the mortgage, and was going to ask his lawyer if he could not hold the grain for the rent notwithstanding the mortgage. We must, therefore, take the facts to be that Cole did not know of the mortgage until after the grain had been removed by Murphy to his (Cole’s) land, but that he did know of the mortgage at the time he sued out the attachment. It does not appear that the mortgagee used any care or diligence in looking after the crop when harvested, or paid any attention to the grain until after it had been attached, which was about a month and a half after Murphy commenced to harvest it, and nearly a month after he had removed it from his land.
We think that under these facts Cole was not estopped *32from denying the continuance of the mortgage lien, and that at the time of the attachment the said lien had been extinguished by the removal of the grain from the land of the mortgagor on which it was raised. (Goodwin v. Williston, 42 Cal. 11" court="Cal." date_filed="1871-10-15" href="https://app.midpage.ai/document/goodyear-v-williston-5437482?utm_source=webapp" opinion_id="5437482">42 Cal. 11; Waterman v. Green, 59 Cal. 142" court="Cal." date_filed="1881-07-15" href="https://app.midpage.ai/document/zuck-v-culp-5440462?utm_source=webapp" opinion_id="5440462">59 Cal. 142.) The cases cited by respondent are cases where there was a tortious removal of the crop from the land on which it grew by third persons, or where the mortgagor had stored the crop at a warehouse in the name of the mortgagee at the latter’s request. We see no ground upon which Cole was estopped from asserting his right as attaching creditor, or from denying the continuance of the lien. He made no false representation; the person to whom the representation was made knew the -fact represented, and the respondent, who is the party asserting the estoppel, was not influenced by the representation to change his position, or to do any act to his prejudice. The case arises out of a mere contest between hostile creditors of Murphy, each standing upon his legal rights. It is true that when Cole attached he knew that there had been a mortgage on the crop, but he also knew that the lien had been extinguished by the removal of the crop from the land of the mortgagor; and he was not bound to look after the former rights of the mortgagee who had lost them by his own carelessness. These views make it unnecessary to consider appellant’s justification .under the execution of Jensen and Lauritzen, against whom no claim of estoppel is made.
The judgment and order denying the motion for a new trial are reversed.
Henshaw, J., and Temple, J., concurred.
Hearing in Bank denied.