156 N.W. 921 | N.D. | 1916
This opinion decides two appeals. The plaintiff in separate actions sued the Hurley Farmers Elevator Company and the Gruber Company for conversion of grain stored by .one Warren Benson. Plaintiff’s rights in both cases are claimed upon the crop admittedly grown upon the same land. Both elevator companies answer that they are merely holding certain grain stored with them by Benson, and are willing to deliver the grain or the proceeds thereof to whomsoever the court shall decide shall be entitled thereto, and that the grain has been claimed by both plaintiff and one J. A. Whitmore, upon whose land it was raised. Thereupon, by stipulation of all parties, Whitmore was allowed to file his complaint in intervention, claiming the grain as against the elevator companies and plaintiff. The cases were consolidated. The same record governs both appeals. At the conclusion of the plaintiff’s case the trial court directed a verdict for the intervener, dismissing both actions, and adjudging Whitmore the owner and entitled to all said grain. Plaintiff appeals.
The facts are not much in dispute. The intervener owned the land farmed by Benson, his tenant, in 1912 under the usual cropper’s contract stipulating that title should be and remain in the landlord until after division and delivery of one half of the grain to the tenant, or the
The tenant testifies and the intervener admits that both were present at the threshing, which was in November, very late in the season; that a physical division of the grain raised was made at the machine, exactly one half being taken by each, the tenant’s share being placed in his granary on the farm and the landlord’s in a separate bin near the machine; and that such equal division was made by the thresher, to the knowledge and acquiescence, and presumably under the direction, of both the tenant and landlord, present; .that' the tenant, who under the terms of the lease was obliged to market the landlord’s share free of charge, soon after threshing started hauling his own grain and drew 9 or 10 loads to the elevators; that at all times the landlord was living
Respondent urges that the most that has been shown was an equitable right to a division which a court would recognize in an action for an accounting, but that in the absence of an agreed settlement it must be held that the title remained in the landlord irrespective of the tenant’s right to a division. Such is not the law under the facts peculiar to this case. The landlord has agreed, “upon reasonable request thereafter made, to give, release, and deliver to said party of the first part the one half of all grain so raised and secured from said farm during said season, or the proceeds thereof, if sold, after deducting from such share any charges, costs, or disbursements incurred and made by said party of the second part.” He has agreed that the title retained by him to all of the grain shall remain in him until he shall thus release •and deliver the one half of said grain “or the proceeds thereof, if sold.” True he might have retained all the title until after a sale of the grain, in which event such mortgage 'never would have attached to any of the grain and he could have divided the proceeds, and the case would have been within the holding in Bidgood v. Monarch Elevator Co. 9 N. D. 627, 81 Am. St. Rep. 604, 84 N. W. 561; Hermann v. Minnesota Elevator Co. 27 N. D. 235, 145 N. W. 821, and other cases. But when the landlord elects to adopt the other alternative, i. divide the specific grain and set apart the tenant’s portion to him without any deductions for advances, and delivers the same to the tenant with intent that the tenant shall own the same as his share of the grain raised, just at that moment of delivery the lien of any mortgage otherwise in abeyance attaches, because the specific property has been set aside to the tenant, vesting title in him, and comes into existence so far as the mortgage is concerned. Thus the landlord may divide the grain, and deliver the
In conclusion on retrial, should the jury find a division and delivery thereon intended to and passing title was made, it will find for the plaintiff and against defendants and intervener, and thereby decide all issues. Should it find that, though a physical division had been, made, yet no delivery thereunder vesting title had been intended and that title to the grain was not in Benson, it will not find for dismissal -of plaintiff bank’s action, but will find the amount of any indebtedness due from Benson to intervener; such indebtedness with intervener’s costs will be paid from the proceeds of the wheat, and any balance will be ordered turned over to plaintiff bank to apply on its mortgage indebtedness, inasmuch as the elevator defendants have tendered the proceeds into court for direction as to application. The reasons for this disposition are obvious. The tenant makes no claim, but concedes the validity of plaintiff’s mortgage and has so testified. If intervener recovers of the elevators, he can only recover, to the amount of his actual damage, the extent of his tenant’s indebtedness to him, leaving possibly nearly all or the greater part of the wheat unclaimed by defendants and subject to division by the court under the pleadings and claims •of the respective parties. Needless to say no amendment of pleadings to change such possible results should be permitted on a retrial after this adjudication of the rights of the parties on their pleadings.
The elevator companies have refused possession of the grain on demand'therefor, and have technically converted it, but in reality are mere stakeholders, and no costs on trial or on appeal will be taxed against them. Plaintiff will recover costs on appeal against the intervener in both suits; costs on trials had and on retrial to abide results of the new trials awarded. The judgments appealed from are ordered set aside and new trials granted, and the causes are remanded for further proceedings.