7 Mont. 385 | Mont. | 1888
The plaintiff in this complaint in substance alleges the following: “ That on the seventh
It will be observed that the only question which arises in the consideration of this case is, whether or not the plaintiff has a lien upon the cattle under the facts stated in the complaint. This involves the construction of section 1394 of the fifth division of the Compiled
In the construction of this statute, we must, if possible, arrive at the intention of the legislature. Comp. Stats. Mont., sec. 631, p. 225. And in construing the statute, we are required “ simply to ascertain and declare what is, in terms or substance, contained therein, and not to insert what has been omitted, nor to omit what has been inserted.” Comp. Stats. Mont., sec. 630, p. 225. These rules of construction are simply general principles of the common law which have been adopted into our statutes, and we shall endeavor, in the consideration of this case, to give them full force and effect. It appears that this case was decided in the court below upon the authority of the case of Underwood v. Birdsell, 6 Mont. 142. The ground was taken by the defendants below that the sheriff himself, being an agent of the mortgagee, had no authority, through his deputy, to make a contract with the plaintiff for the keeping, feeding, and pasturing of the cattle which were then in his possession. There are certain loose expressions in the opinion of the case above referred to which would seem to sustain this view, but a careful consideration of that case shows them to be obiter dicta, and that the case was
We do not deem it necessary to the disposition of this case either to affirm or to deny the proposition enunciated in the case of Eddy v. Kenney, supra. But, under the allegations of the complaint, it is clear that the sheriff was lawfully in possession of the cattle referred to, and this fact empowered him to make the contract under which the lien is claimed by the plaintiff as a ranch-man. It will be observed, on a perusal of the statute, that the lien is given to ranchmen, farmers, agistors, herders, tavern-keepers, and livery-stable keepers, to whom the cattle, horses, etc., may “ be intrusted, and a contract for their keeping be entered into between the parties for the purpose of feeding, herding, pasturing,” etc. The statute does not say that the contract must be with the owner of such cattle or his agent. It is fair to presume that it was intended to be made between the ranchman and any person having lawful possession of the live-stock; since only one exception is made to the provisions of the statute, and that is this: “That the provisions of this section shall not be construed to apply to stolen stock.” At common law, an inn-keeper had a lien upon animals intrusted to his care, even where
Such being our view of the statute under which this lien is claimed, it is only necessary to inquire further ■whether or not the sheriff had authority to make a contract. with the plaintiff through his deputy. It is enacted in the laws of this territory that “ it shall be lawful for the mortgagor of goods, chattels, or personal property to insert in his mortgage a clause authorizing the sheriff of the county in which such property or any part thereof may be to execute the power of sale therein granted to the mortgagee, his legal representative and assigns, in which case the sheriff of such county at the time of such sale may advertise and sell the mortgaged property in the manner provided in such mortgage; and at any such sale made as aforesaid, the mortgagee, or his representative or assigns, may, in good faith, purchase the property so sold, or any part thereof.” Comp. Stats. Mont., sec. 1550, pp. 1071, 1072. Under this statute the sheriff took possession of these cattle in his official capacity, and not solely as the agent of either the mortgagee or mortgagor. He is an executive officer appointed by the law to make the sale of the mortgaged property in compliance with the terms of the mortgage itself. If the
Holding these views as to the proper construction of the statute in regard to liens for the pasturing of cattle, we cannot escape the conclusion that it was error in the court below to sustain the defendant’s demurrer. Accordingly, the judgment of the court below is hereby reversed, and the cause remanded.
Judgment reversed.