65 N.W. 682 | N.D. | 1895
Both parties to this action claim the right to an amount of money that was due from one Kennedy for threshing performed for him in the fall of 1893. The threshing was done by one Fred Schimming, with amachine owned by him. Defendant and appellant, Hannawalt was hired by Schimming, and worked for him in threshing a portion of that season, including the threshing done for Kennedy. Schimming failed to pay Hannawalt for such labor, and Hannawalt brought suit in Justice’s Court to recover the amount, and, having obtained judgment, execution was issued and levied upon the balance in Kennedy’s
This paper was never filed for record. What is the Tlegal force and effect of this contract? It is an assignment absolute or conditional and by way of security? And, if conditional, is it a pledge or mortgage? There are terms in the instrument indicating by strong language that 'the accounts, when earned, were ‘to be the absolute unqualified property of respondent, and his counsel urge that point with tenacity, and we gather from the record that such was the view of the trial court. But the language in the contract cannot prevail against the statute. Section 4348, Comp. Laws, reads as follows: “Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to deemed a pledge.” If this instrument had any effect whatever, it was a transfer of an interest in property. True, the property was not then in esse, but as an executory agreement of sale it might be made effectual under section 3258, Comp. Laws, and under section 4328, if a mortgage, the lien would attach when the property came into existence. But, being a transfer of an interest in property, and it being perfectly clear from the whole instrument that whatever interest was transferred was so transferred as security for the payment of an existing debt owing by Schim
But there is yet the further reason why such cases are not
Some technical objections are made as to the sufficiency of the evidence to entitle appellant to the money in any event. We
The trial court will reverse its judgment, and order a new trial.