117 N.W. 525 | N.D. | 1908
Lead Opinion
The record in this case presents an anomalous condition.' The action was brought in the district court of Cass county for the foreclosure of a chattel mortgage, executed and delivered by the defendant to the plaintiff, upon an undivided one-half interest in certain barley raised during the year 1905, on land described in the complaint. There is no dispute as to the giving of the mortgage, or as to the existence of the indebtedness secured thereby. The' complaint is in the usual form, and the answer, after admitting the execution of the notes and chattel mortgage, alleges in effect that the grain grown on the land described in the mortgage is the property of one E. L. Young, the owner of said land, and that defendant farmed said land during said year under the ordinary farm contract, by the terms of which all title to the crops produced thereon during said year should be and remain the property of the said Young, as security for the payment by the defendant to the said Young of all advances madé by Young to him, and all indebtedness due from him to the said Young, the title to-all such crops to remain in said Young until a settlement was had between them on account of all matters arising out' of the farming operations for that year, and that such contract contained a stipulation that, until such settlement and the' payment of’ all such advances, the title should remain in sáid Young. It further alleges that no such settlement had ever taken place. By the terms of'this contract Young was to pay the defendant, by way of compensation for his services, the one-half of the crop raised on said
. The proof shows that there were about 936 bushels of barley seized and taken into the possession of the sheriff under a warrant issued pursuant to section 7513, Revised Codes 1905. About five-elevenths thereof was grown on the land described in the chattel mortgage, and the remainder upon other land owned by Young and farmed by defendant under said farm contract. At the time the grain was threshed the defendant intermingled the same by placing it in one bin or granary on the farm. The undisputed proof shows that some time after its seizure Young demanded from the plaintiff one-half of said grain, and the same was delivered pursuant to the demand. The proof also shows that some time prior to the trial the plaintiff sold the remaining portion to an elevator company. We therefore have the strange anomaly of the plaintiff seeking to obtain a judgment m foreclosure under this chattel mortgage after the property has been sold and converted by him; and defendant asserts that the chattel mortgage never attached to the grain, for the reason that he, as mortgagor, never acquired any title therein, and that the title thereto is in said Young. At the same time he
This brings us to a consideration of defendant’s counterclaim,.upon which he was allowed to recover an affirmative judgment-against the plaintiff. Having, in effect, alleged ownership and" right of possession in Young of the grain in controversy, it would seem that his -only cause of action, if any, would be one for damages, to his contingent or conditional interest or estate in the property. Both he and Young might maintain an action against the plaintiff for damages but their recovery-would necessarily be limited to the value of their respective interests in the grain. Of course both could not recover its full value. Whether such actions would at common-law be designated as trover, or some other form of trespass on the case, is immaterial. But however this may be, we are entirely-
It is stated in respondent’s brief that no objection was made to this counterclaim in the court below. It is true plaintiff’s counsel did not ask to strike it out, and they served a reply thereto, but the record discloses that at the trial they objected to all evidence in ■any way tending to prove the same. We think this sufficient.
Our conclusions are, therefore, that the judgment upon the so-called counterclaim was erroneous and must be reversed and the action dismissed, and it is so ordered. All concur.
Rehearing
ON PETITION FOR REHEARING.
Since the foregoing opinion was filed, counsel for appellant have presented a petition for rehearing, in which they contend that there is no proper evidence to support the conclusion that, since the action was commenced, and prior to the trial, appellant had converted the grain covered by his mortgage by a sale thereof. In such petition counsel direct our attention to the testimony drawn out on cross-examination of plaintiff over proper objections, and they contend that this is the only evidence that the barley seized under the warrant had been disposed of. If counsel were correct in this contention, we think their argument would be unanswerable. But they have evidently overlooked the fact that later in the trial plaintiff was called as a witness for defendant, and without any objection whatever they proved by his testimony that he had sold the grain to Walker & Huyck, elevatormen. This testimony, coming in as it did without objection, is, we think, fatal to plaintiff’s recovery. The petition is therefore denied.