27 Colo. App. 154 | Colo. Ct. App. | 1914
rendered the opinion of the court.
On Rehearing:
This action was begun November 4, 1909, by defendant in error (plaintiff below). The complaint contains three causes of action: First, replevin to recover possession of three hundred and ten head of lambs included -within a mortgage upon eleven hundred and three of such animals; second, to recover $1400 for value of wool clipped from the sheep during the life of the mortgage, and before breach of the covenants thereof; third, to recover $1400 for injury and damage done to the lambs by such clipping.
The answer admits the mortgage, possession by defendant Sorrells of the lambs, and his refusal to surrender the same upon demand of plaintiff; but defends the action under a claim that he had an agistor’s lien, in the sum of $950, uppn the lambs replevined, superior to the lien of the mortgage. The answer also alleges that defendant received into his custody, from the owner Davis, something over two thousand sheep, to be taken care of and fed by him under the terms .of a contract dated October 28, 1908, entered into between himself and Davis; that defendant foreclosed the agistor’s lien and realized from the sale of the lambs the sum of $600, which he applied upon said indebtedness of $950, leaving a balance still due him of $360; that said plaintiff company, before execution and delivery of the mortgage, had full knowledge of all the circumstances surrounding the delivery of the sheep to him, and the care and feeding of the same. The answer further alleges as a defense that the plaintiff company took from defendant’s possession all of the two thousand sheep aforesaid, except the three hundred and ten lambs replevined, and sold the
The case was tried to the court without a jury, and the court rendered judgment in favor of plaintiff for the possession of the Iambs, or for their value, $1071, in case of non-delivery; also for $1103 damages for conversion of the wool.
This case has been ably prosecuted and defended by the attorneys for the respective parties, and we have given it careful consideration. There is but little controversy as to the facts. It appears to.be conceded by counsel for both parties that the disposition of three sharply defined issues is sufficient to determine this appeal:
First. Under our statute, does a chattel mortgage upon sheep, including in terms their “increase,” include the wool clipped therefrom in proper season, within the life of the mortgage, and before default, when no mention is made therein of such wool ?
Second. Did the relations between Davis and Sorrells warrant an agistor’s lien' in favor of the latter, under our statute ?
Third. If Sorrells was entitled to an agistor’s liep, did he waive such lien by his subsequent statements and acts, made and done at or about the time he solicited Mr. Campion, manager for defendant company, to guarantee
We will discuss the issues in the order named and refer to facts which appear to be established by the evidence as we proceed.
First, did the chattel mortgage include the wool thereafter clipped? At common law all'personal property subject to absolute sale could be mortgaged, and it is a general rule of law that a chattel mortgage fastens a lien only upon the specific property therein described. The statutes of California and some other states (not including Colorado) render a chattel mortgage void as to personal property other than that specifically designated by the statute. Section 515, Revised Statutes 1908 of Colorado, provides, among other things, that
“Every mortgage of live stock may cover and bind the increase of such live stock, or any part thereof, thereafter to be born, as may be provided therein,” etc.
The chattel mortgage in the case at'bar was given upon the following described property: ■
“All the following described live stock, cattle, and increase thereof and personal property, viz.: * * * Eleven, hundred three (1103) head of good Idaho lambs, average weight about 72 pounds, being the identical sheep purchased from B. F. Saunders at Cheyenne, Wyo., Feb. 20, 1909. ❖ Sji ❖
Said sheep are at present located in feed lots situated on the Teller’s and Sorrells’ ranch, located about three miles east of the town of Windsor, Weld County, Colorado,” etc.
A construction of the word “increase” found in the mortgage seems necessary. It has been repeatedly construed by text-writers and appellate courts in various jurisdictions, and the almost unanimous conclusion reached is that the term “increase,” when used in chattel mortgages upon sheep and other live stock, refers exclusively to the progeny or young of such animals, and does not include
The case of Alferitz v. Borgwardt, 126 Cal., 201, 58 Pac., 460 (decided September, 1899), judicially interprets and defines the meaning and effect of the term “increase” when used in mortgages of live stock. The mortgage there expressly mentioned a drove of sheep and their increase. That case directly involved the right of a mortgagor to clip and sell the wool grown on the sheep after execution of the mortgage and before foreclosure. The mortgagee sued to recover the value of such wool. The court- said, in part:
“Section 2955 of the Civil Code, so far as material here, reads as follows: ‘Mortgages may be made upon the following personal property, and none other: * * * 16. Neat cattle, horses, mules, swine, sheep, goats, and the increase thereof.’
In addition to the fact that the presumption is against the right to mortgage personal property, and permission so to do must be clearly found in the statute, it- must be ad
When we speak of the increase of a herd of cattle or a flock of sheep, we refer to growth of the herd or flock by addition of new members. * * * The wool does not increase the flock of sheep.”
In Stringfellow v. Sorrells, 82 Tex., 277, 18 S. W., 689, the court defined the meaning of the word increase, when applied to live stock, using, in part, the following language:
“As applied to live stock belonging to the wife, ‘the increase’ of such property has been invariably (ever since the decision of the Supreme Court in Howard v. York, 20 Tex., 670) recognized in the reported cases to denote the progeny of the original stock or their descendants. This construction comports with the etymology of the term, and accords with the universal understanding.”
To the same effect, Cox v. Beck et al. (C. C.), 83 Fed., 269, post.
The mortgage In the case at bar specifically mentioned the “increase,” but not the wool, and we are satisfied, from the authorities cited, as well as upon reason, that the word “increase,” as there used, did not extend the lien of the mortgage to the wool grown on the sheep subsequent to its execution, when clipped and sold by the, mortgagor while the sheep were in his possession, and before breach of any of the mortgage covenants.
In Shoobert et al. v. DeMotta, 112 Cal., 215, 44 Pac., 487, 53 Am. St., 207, decided March 31, 1896, the Supreme Court held that in chattel mortgages upon sheep, nothing being stated therein concerning the increase, the lien was not extended to the after-born young. The court said:
“In the absence of any express agreement upon the subject, the lien created by a mortgage is limited to the property which is described in the mortgage, and does not include other property of the same character which the mortgagor may have afterward acquired and placed with the mortgaged property. (Jones on Chattel Mortgages, Secs. 138, 154). If the mortgagor retains the possession of the mortgaged property, he is at liberty to deal with and use it as its owner, and whatever income or profit may be derived from such use belongs to him, and not to the mortgagee.”
While in that case the question of title to wool is not involved, the decision is pertinent, in that it recognizes the rule that in the absence of an express condition a lien created by a chattel mortgage is limited to the property therein described. The decision further appears to lay stress upon the fact that if the mortgagor of live stock by the terms of the mortgage retains possession of the same, he is at liberty to deal with and use it as its owner, and is entitled,
In the case of First National Bank of Santa Ana v. Erreca et al, 116 Cal., 81, 47 Pac., 926, 58 Am. St., 133 (decided February, 1897), the chattel mortgage on sheep did not refer to either increase or wool. Before default the mortgagors clipped fourteen thousand pounds of wool from the sheep and sold it, and also sold some eight hundred head of lambs that had been born subsequent to the giving of the mortgage. The court held that the lien of the mortgage did not extend to either the subsequently born •Iambs or the wool grown on the sheep and clipped after the execution of the mortgage and before foreclosure, the court saying, in part:
■ “The superior court erred in holding that the wool sheared from the sheep and their increase was covered by the mortgage and subject to its lien. * * *
The provision in Section 2955 of the Civil Code, authorizing the execution of a chattel mortgage upon ‘sheep, and the increase thereof,’ does not extend the lien of a mortgage upon ‘sheep’ to the ‘increase’ of the sheep, but implies that unless the increase is covered by the terms of the mortgage it is not included therein.”
The decision further held, on principle, as announced in Shoobert v. DeMotta, that the lien of the mortgage did not apply to lambs in gestation at its date.
Upon this point Alferitz v. Borgwardt also involved the right of a mortgagee to the wool grown on the sheep after execution' of the mortgage and before foreclosure. The mortgagee sued to recover the value of the wool clipped from the sheep, alleging in the complaint that defendant had converted it to his own- use. The court held that the lien of the mortgage was not extended to the wool, saying:
“It is assumed on both sides that the wool was not taken from the actual possession of the plaintiff. * * *
*162 It is also to be presumed that when the mortgagor retains possession of the sheep, he expects to make a profit from the sheep in the meanwhile. He certainly expects to make a living from such use and to pay his debt from it; as much so as one who mortgages his farm and retains possession. Upon the subject of use the intendments are the same. This idea is expressed in Shoobert v. DeMotta, supra, and it is said that where the increase are not mentioned, the mortgagee might as well claim the wool as the lambs, as each may be the annual profit which the mortgagor in possession is entitled to retain unless the contrary intent is-expressed. This reasoning equally applies to. the statute.”
In Demers v. Graham, Sheriff, et al., 36 Mont., 402, 93 Pac., 268, 14 L. R. A. (N. S.), 431, 122 Am. St., 384, 13 Ann. Cas., 97, the court held that a chattel mortgage upon cows did not extend the lien to calves in gestation at the time the mortgage was executed, where no reference was made therein to “increase.” The court said:
“The law is well settled in' this state that a chattel mortgage only creates a lien and does not pass title from the mortgagor to the mortgagee. * * *
Growing crops may be the subject of chattel mortgage, even though the owner of the same also owns the land upon which they are growing. And this rule prevails even in those jurisdictions where growing crops are part of the realty. * * * Now, it will not be contended that a grant of the land would not pass title to a growing crop. So, too, the sale of a cow would undoubtedly carry with it her unborn calf; but we cannot assent to the conclusion that because thereof, a chattel mortgage describing the cow only would also create a lien upon her offspring. * * * We think if the legislature had intended that the lien of a chattel mortgage describing particular animals should attach to their young thereafter to be born, it would have said so plainly, as it did in the case of a pledge. In the absence of such a declaration it seems reasonable to hold that because*163 the mortgage is simply a lien passing no title, the mortgagor in possession has the right to deal with the property as his own, and in the case of domestic animals may dispose of the young not mentioned in the mortgage as he sees fit. This construction leaves to the mortgagee the security described in the mortgage, and does away with the confusion that experience has taught invariably follows the adoption of any other rule. If, in cases like this, it be intended to include the offspring, the mortgage should so state.”
The court there quoted at great length from Shoobert v. DeMotta and First National Bank v. Erreca, supra, and adopted the conclusions and reasoning of the same. While the case does not involve the question of wool clipped from the sheep after execution of the mortgage, it clearly holds that if the mortgage fails to specifically refer to the after-born progeny of the mortgaged cows, even though in gestation, the mortgage lien is not extended to the same'. .
Notwithstanding these authorities, defendant in error contends with great force that the wool upon the sheep was a constituent part of the same, and that under the rule adopted in this state the title to the lambs passed to the mortgagee upon the execution of the mortgage, and therefore the title to the wool also passed; hence, the mortgagee was the lawful owner of the wool and was entitled to possession thereof, as against Sorrells, the purchaser — citing authorities that seem to sustain its position, of which the most direct and positive is Alferitz v. Ingalls, supra. We have already stated that the opinion in that case was an oral- one, and is in direct conflict with the Supreme Court of California, as well as those of Oregon and Montana.
In Knowles v. Herbert, 11 Ore., 240, 4 Pac., 126, the rule was announced as follows:
“That (mortgage) lien has not been foreclosed, and it is conceded in the argument for appellant to be the settled law in this state that a chattel mortgage, until it has been foreclosed, conveys no title or interest in the property*164 covered by it, except a mere lien to the mortgagee.”
However, a subsequent Oregon decision, Case Threshing Machine Company v. Campbell, 14 Ore., 460, 13 Pac., 324, repudiates the rule as there stated, the court saying, in part:
“It may be well said, as in the two cases referred to (Chapman v. State, 5 Ore., 432, and Knowles v. Herbert, supra), that a chattel mortgage simply creates, in the outset, a mere lien upon the property, and vests no title in the mortgagee; but that cannot be said after the conditions of the mortgage are broken. * * *
It will, I think, be observed in Chapman v. State, and Knowles v. Herbert, supra, that the broad declaration there made * * * was not necessary to the decision of the first of said cases, nor appears to have been to that of the second. * * * The Michigan courts come nearer to supporting it than any other of the state courts; but they only say that the title does not become absolute until foreclosure. * * * It is evident to my mind that the court went too far in those cases.”
So it would seem that Oregon subsequently changed its position, and in lieu of the doctrine laid down in Chapman v. State and Knowles v. Herbert, supra, adopted a rule analogous to the one prevailing in Colorado.
In Mayes v. Stephens, 38 Ore., 512, 63 Pac., 760, 64 Pac., 319, it is said:
“It- was formerly held in this state that a mortgage of chattels created only a lien upon the property affected thereby, * * * but it was subsequently determined that upon a breach of the condition of a chattel mortgage, the mortgagee thereby secured a qualified ownership in the property,” etc.
It is also said in Culver v. Randle, 45 Ore., 491, 78 Pac. 394:
“The rule is settled in this state that a chattel mortgage is a conditional sale of personal property, and after*165 breach of its terms a mortgagee has such a qualified right to the property as to enable him, under an allegation of absolute ownership, to maintain an action of claim and delivery for its possession.”
In logical sequence of the discussions it is well now to refer to another Federal case, Cox v. Beck et al. (C. C.), 83 Fed., 269, decided in September, 1897, three months before Alferitz v. Ingalls, The case involved the construction of a chattel mortgage executed in Oregon, and the conclusions of the district judge were diametrically opposed to those announced in Alferitz v. Ingalls. A number of chattel mortgages were executed upon sheep in that staté. In addition to determining the priority of such mortgages, the court held that under a mortgage given upon sheep and their increase, not mentioning wool, the mortgagee at time of taking possession for foreclosure, was entitled not only to the young lambs born after the mortgage was executed, but also to the wool then on the sheep; but that, prior to the time of taking such possession, a purchaser of 'wool grown on the sheep subsequent to the execution of the mortgage took title to the same free from the lien of the mortgage. The court said, in part:
“The increase of such property at the time the mortgagee takes possession for the purpose of foreclosure is necessarily covered by the mortgage, but this rule is limited to cases where it is impracticable or unnatural to separate the increase from the original stock. Lambs, as such, go with the ewes; but when they are grown they are not within the mortgage of the flock, unless they are made so by the express terms of the instrument. More especially is this so where they have been separated and sold. So, of the fleece, the mortgagee cannot be expected to shear the mortgaged sheep for another’s benefit; but when the fleece is shorn, and sold by the mortgagor in possession, the purchaser takes without reference to the mortgage. The com*166 plainant, therefore, has no claim upon the proceeds of the wool clip of 1895.”
From the California and Montana cases above cited it will be observed that although those states adhere to the lien rule, they, nevertheless, hold, under statutes similar to our own, authorizing chattel mortgages upon live stock and the “increase” thereof, that such a mortgage, wherein no mention is made of after-grown wool, does not extend the lien thereto, even though the mortgage specifically includes the “increase;” and, further, that under such a mortgage the mortgagor has a legal right to clip and appropriate to his own use the wool grown on the sheep prior to foreclosure, if by the terms of the mortgage he retains possession of the sheep. In the Oregon cases, however, as well as in Cox v. Beck et al., above cited, we have authority directly applicable to the situation existing in the case at bar. Those cases clearly show that Oregon adopted the same rule which obtains in Colorado, namely, that a chattel mortgage is a conditional sale, which passes title in the mortgaged chattels to the mortgagee upon execution and delivery of the mortgage, which title becomes absolute only upon breach of the mortgage covenants. From those cases it will be at once seen that under the conditional sale rule a chattel mortgage on sheep, specifically mentioning their “increase,” but making no reference to the wool growing on the sheep after execution of the mortgage, and before breach of conditions, does not extend the lien to such wool, if the mortgage provides that the possession of the sheep shall remain with the mortgagor; and if before such breach the mortgagor clips and sells the wool, during the life of the mortgage, the purchaser takes a good title thereto free from the lien of the mortgage. We have examined all the Colorado cases cited by counsel, and discover nothing therein against the Oregon rulings, but are inclined to think they, inferentially at least, are in harmony therewith.
The case of Atchison v. Graham, 14 Colo., 217, 23 Pac., 876, was an action in replevin to recover mortgaged personal property. By th'e terms of the mortgage the mortgagor retained possession. After maturity of the note the mortgagee’s assignee made an attempt to vest himself with possession of the property, which the court held to be futile. Thereafter it was seized under execution at the behest of a judgment creditor of the mortgagor. Breach of the mortgage covenants had been made, and the mortgagee failed to vest himself with such possession as the statute required, and for that reason alone the court held the levy good as against the mortgagee. The court said, in part:
“A chattel mortgage is in law a conditional sale of chattels, and operates to transfer the legal title to the mortgagee. Upon breach of the condition the title becomes abso*168 lute, and the mortgagee may then treat the mortgaged property as his own.” (Italics ours.)
The case of Hurt v. Hubbard, 41 Colo., 505, 92 Pac., 908, was an action in trover for conversion of mortgaged personal property. In this case also default in the payment of the mortgage debt had occurred. The court held that after such default the title became absolute in the mortgagee, who had the right to take possession of the property and sell the same under the terms of the mortgage. The court said, ip part:
“A mortgage of chattels is a conditional sale thereof, whereby the legal title is vested in the mortgagee subject to the right of the mortgagor to perform the conditions imposed by the mortgage. Upon violation of such conditions the title-of the mortgagee becomes absolute, and he is entitled to take and hold possession of the mortgaged chattels for the purpose of sale,” etc.
Here, again, it will be noticed that the debt secured by the mortgage had matured and the assignee of the mortgagee claimed the right of possession- of the property against the owner, for the purpose of foreclosure, which claim was upheld.
In Crocker v. Burns, 13 Colo. App., 54, 56 Pac., 199, a case of replevin by mortgagee after default, the court said, in part:
“On condition broken, the legal title to the chattels covered by a chattel mortgage becomes absolute in the mortgagee: * * * Especially is.this the case where, as in this' instance, the mortgagee had possession of the mortgaged property after foreclosure.”
From a plain reading of our statute, which authories mortgages upon live stock and their increase to be thereafter born, “as may be provided therein,” and from a careful perusal of the authorities cited, we have reached the conclusion:
Second. That while recognizing the law in this state to be that a chattel mortgage is a conditional sale of the property therein described, and passes a qualified title to the mortgagee, still if such mortgage be given upon sheep without express.mention therein of the wool thereafter to be grown thereon, the lien of the mortgage will not extend to such wool if the same is clipped from the sheep within the life of the mortgage and before breach of the mortgage covenants, provided the mortgage- by its terms permits the mortgagor to retain possession of such sheep until condition broken.
Third. It appearing from the record that under the terms of the mortgage Davis, mortgagor, retained possession of the sheep mortgaged, and while in such possession, before maturity of the mortgage indebtedness, and before breach of any of the mortgage covenants, clipped and sold the wool to Sorrells, the latter took good title to the same, notwithstanding the mortgage, and the trial court erred in ruling that the wool had been converted by Sorrells.
Having disposed of the first question, we will now take up the second. Did the relations between Davis and Sorrells warrant an agistor’s lien on behalf of the latter? The proven facts concerning this question, including some repetition, are as follows: Sorrells was part owner of the Teller and Sorrells ranch. At the time of the delivery of the sheep to him he was engaged in general farming, as well as in feeding and taking care of sheep for other people, upon said ranch, for a consideration. Under, the contract of Oc
The contract referred to reads as follows:
“Windsor, Colo., October 28, 1908.
This agreement made and entered into by and between Charles Sorrells, party of the first part, and W. C. Davis, party of the second part,
WITNESSETH:—
Party of the first part agrees to sell to party of second part one hundred seventy acres of beet top pasture, on the Sorrells & Teller ranch, at $3.50 per acre; also agrees to sell to party of the second part all hay now on said Sorrells & Teller ranch not needed by himself for feed, at $6.00 per ton, on the basis of 512 cubic feet per ton.
Party of the first part acknowledges receipt of five hundred and ninety-five dollars, payment in full for pasture, and six hundred and five dollars, payment, on hay, balance due on hay to be paid at time hay is measured.
*171 Party of the second part agrees to feed 2000 head of sheep on said Sorrells & Teller ranch, and to pay to said party of the first part the sum of one hundred fifty dollars per month as full compensation for feeding and taking care of said sheep, including the hauling of all hay and grain required. Should party of second part conclude to feed pulp he agrees to pay to said party of first part a further sum of fifty dollars per month for hauling-an amount of four tons of pulp per day. Should party of second part conclude to pasture any cattle on said ranch he agrees to see that the do not damage or harm adjoining farmers or their property. It is understood, that the compensation of one hundred and fifty dollars per month commences with the der livery of the sheep on said ranch, and continues until sheep are taken away.
Party of first part agrees to have corrals and feeding pens in readiness to receive said sheep by the 15th of November.
(Signed) Charles Sorrells,
W. C. Davis.”
It is claimed by defendant in error that by the terms of this contract Sorrells was a mere hired servant of Davis, to care for and feed the sheep, and was thereby excluded from claiming the right of an agistor’s lien under our statute, which reads:
“Any ranchman, farmer * * * or any other person, * * * to whom any * * * sheep * * * shall be entrusted for the purpose Of feeding, herding, pasturing, keeping or ranching, shall have a lien upon such * * * sheep,” etc. Sec. 4013, Revised Statutes 1908.
If this contract must be construed in such a way as to deprive Sorrells of any rights possessed by him as a ranch-man under the statute; or, in other, words, if the contract transposed Sorrells’ status as a ranchman into that of a common hired servant, as defendant in error contends, there would be some force to their contention. We do not put
“Q. You directed to him (Sorrells) how you wanted these sheep fed, did you not ? * * *
A. I ’ never gave him any directions, only took the sheep out there, but I understood that he was a sheep feeder, and a good one.”
In Tabor et al. v. Salisbury, 3 Colo. App., 335, 33 Pac., 190, the court sustained and approved an instruction as properly expounding the íaw, in these words, viz.:
*174 “The jury were properly instructed. They were clearly and plainly told by the court that if the stock was not entrusted to the ranchman to be fed, but remained in the custody of the owner or his employees, and the ranchman simply sold the feed which was consumed by the animals, and had no other custody, of them than that which flowed from the permission to use his yards for feeding purposes, the case was not within the lien statute as against the mortgagees. On the other hand, the court told them that if they found from the testimony that the stock was entrusted to the ranchman, and that it was in reality in his custody for the purpose of care during the winter, that then his lien would attach.”
The trial court in the instant case found and ruled that Sorrells was merely an employee of Davis under the contract, and as such had no right to an agistor’s lien under the statute. We have already shown that we are not in accord with that court in such findings and rulings.
We will now consider the third question raised, viz.: Did Sorrells waive his right to enforce his agistor’s lien?
Plaintiff contends that, as to the unpaid balance, if Sorrells had an agistor’s lien for a balance due (after crediting the amount received, from the sale of the wool) for feeding and caring for the lambs, he clearly waived the same as to the 306 head involved in this suit by permitting plaintiff to sell the same, after Sorrells had told Mr. Campion, on or about May 11th, that Davis owed him nothing for feed and care of the lambs in the past, and that he had settled with Davis for everything due at that time, those statements being made at the time Sorrells was soliciting Campion or his company to guarantee the payment’ of all future costs that might be incurred in the feeding and caring for the lambs. Defendant, on the other hand, insists that there was no agreement or understanding on Sorrells’ part to waive his lien, and Sorrells denies he ever so waived it. We have carefully perused the record, and conclude that
Some other questions have been raised and discussed by counsel in the briefs, bút, as the views of the court above expressed dispose of this appeal, we do not deem it necessary to make further reference thereto.
The former opinion will be withdrawn, the judgment reversed, and the cause remanded for new trial.
Judgment reversed.