More v. Western Grain Co., 164 N.W. 294

More v. Western Grain Co.

164 N.W. 294 | N.D. | 1917

Lead Opinion

Robinson, J.

In this case the plaintiffs appeal from a directed verdict and judgment against them. It appears that on August 19, 1912, Charles Procise made to the Hart-Parr Company a chattel mortgage to secure five promissory notes, to wit: $500 due October 15, 1912; $400 due September 15, 1913; $400 due October 15, 1913; $400 due September 15, 1914; $400 due October 15, 1914. The Hart-Parr Company indorsed to the plaintiffs the first three notes. Then to secure the same or the amount due on said notes, Charles Procise made to the plaintiffs a mortgage on all crops of grain to be grown during the year 1913 on section 1-133-95. The mortgage was duly made and filed. Then an action was commenced to foreclose a mortgage on the same land, and by order of the court dated August 1, 1913, a receiver of the land was appointed and directed to take possession of the land and the crops. The plaintiffs were not parties to that action, and of course their mortgage lien was not in any manner devested or affected by the appointment of the receiver. The court had undoubted jurisdiction to appoint the receiver and to take possession of the land, but it had no right or jurisdiction to direct the receiver to take the crops or the property of a third person.

As it appears the crops produced on said land during the year 1913 consisted of a large amount of wheat and barley, and defendant took and sold the same, — wheat, 1,331 bushels; barley, 366 bushels, — and the plaintiff sues to recover, the value of the same to the amount of his liens. The answer sets forth the appointment of a receiver, and that by order of the court he took the grain and sold it to the defendant. Also that the plaintiff made no claim for the crops until the receiver had expended large sums of money in harvesting, threshing, and delivering the same to the defendant. To make the crops available it was necessary for the mortgagee, the receiver, or some party to pay the expense of harvesting, threshing, and hauling the same to market, and the receiver, paying such necessary expenses, must be permitted to prove the same and to retain it from the proceeds of the crops, and, on the same principle, so far as the mortgagees pay the labor expenses for producing the crops and discharging labor liens they should be reimbursed from the crops. As it appears from the record, the crops sold were about sufficient to pay the liens of the plaintiff and the expenses necessarily paid by the receiver.

*553The mortgagees seem to feel that they were put between the devil and the deep sea. They did not know which way to jump, and so they brought one action ag-ainst the receiver and another action against the defendant for receiving and purchasing their grain. In each case the court erroneously decided against them. The reasoning in the other' case will apply with equal force to this case. The mortgage to the-plaintiffs was made to secure $1,300 and interest from August 19,. 1912, according to three promissory notes, which were sufficiently described in the mortgage. Much ado is made of the fact that the mortgage described the three notes as executed to More Brothers, instead of indorsed to More Brothers; but it is much ado about nothing. The use of the printed word “executed” in lieu of “indorsed” or “owned by” deceives no person, and the validity of the mortgage does not depend on the notes. It was made to secure $1,300, and interest, and in case of default the mortgagees are authorized to sell the mortgaged property and to retain the amount due on the debt, and the mortgagee is also> given the right to pay from the sale the necessary expenses of harvesting, threshing, and caring for the crops.

The case turns on principles which are simple and elementary, and it is needless to quote from Cyc. or any other book. We search in vain for any note or memorandum showing the grounds, upon which the judge directed a verdict in favor of the defendant. It is needless to say that, while the mortgagees may recover against wrongdoers two judgments for the same debt or claim, they can have but one payment of the debt. The defendant may thank itself for incurring the expense of a groundless defense and two appeals in actions which might have been consolidated. However, the record shows no excuse for the-defense made to either action.

Judgment reversed.

Concurrence Opinion

Christianson, J.

(concurring specially). This is a companion case to More v. Lane, post, 563, 164 N. W. 292, and is virtually controlled by the decision in that case. The evidence shows that the receiver delivered and sold the grain involved in this litigation to the defendant prior to the commencement of this action; that proper demand was made on the defendant hy .the plaintiffs for the grain before the present action was instituted, and that such demand was refused. As stated in More v. Lane, the evidence clearly shows that *554the plaintiffs had a valid first mortgage lien on the grain, and also that they are assignees of certain farm laborers’ liens. The receiver could convey to the defendant no better title to this grain than he possessed, and defendant therefore purchased the grain subject to whatever valid liens existed against it (34 Cyc. 332-334). As the two actions involved the same grain, and as the ownership of such grain and plaintiffs’ special property therein is primarily involved in the case of More v. Lane, I agree with Mr. Justice Eobinson that under the facts in this case plaintiffs’ recovery should be measured by their recovery in the case of More v. Lane, and that a payment of the judgment in that case should also operate as a payment of the judgment in this case.