3 S.D. 290 | S.D. | 1892
The controlling question in this case is whether the lien of an agister for the feeding and pasturing of stock, received from the mortgagor in possession, takes precedence over the lien of a chattel mortgage upon the same stock, given and filed in the register’s office, as provided by law, prior to such feeding and pasturing. Respondent makes the preliminary objection that the complaint does not state a cause of action, nor show the plaintiff entitled to any relief, or to resist defendant’s claim for a lien, for the reason that plaintiff’s interest, if he have any, in the property involved, depends entirely upon the terms of a chattel mortgage, which are not pleaded, or set out in the complaint, except as an exhibit thereto, and so not entitled to be considered. Under the rule approved and adopted by a majority of this court in Aultman v. Siglinger, 2 S. D. 442, this would probably have been good ground for demurrer to the complaint. Defendant, however, did not demur, but answered upon the merits and went to trial, when the chattel mortgage was offered in evidence and received without objection. Under these circumstances, the defendant cannot in this court for the first time take advantage of this defect in the complaint, which was plainly amendable, and which was in fact fully covered by evidence received without objection. Johnson v. Burnside, (S. D.) 52 N. W. Rep. 1057. Comp. Laws, § 54.86, under which defendant’s lien is claimed, is as follows: “Any farmer, ranchman, or herder of cattle, tavern keeper, or livery stable keeper, to whom any horses, mules, cattle or sheep shall be intrusted for the purpose of feeding, herding, pasturing, or ranching, shall have a lien upon said horses, mules, cattle or sheep for the amount that may be due for such feeding, herding, pasturing, or ranching, and shall be authorized to retain possession of such horses, mules, cattle or sheep until the said amount is paid: provided, that these provisions shall not be construed to apply to stolen stock.” The undisputed facts upon which this controversy must be determined are that on the 1st day of May, 1888, the owners of the stock involved made and delivered to plaintiff’s assignor a chattel mortgage on the same, which was duly filed in the office of the register of deeds of the proper county, June 30, 1888; and that on the 12th day of May, 1889, the mortgagors, still in
It appears from the record that the mortgagors were themselves farmers and stockraisers. In the absence of any suggestion to the contrary, the inference is a fair one that the mortgage was given and taken with the understanding that the mortgagors should keep and look after the mortgaged stock according to the well-known custom in such cases, at their own expense, and not at the expense of the stock or the mortgagee. Right here we quote from the opinion of the court in Howes v. Newcomb, (Mass.) 15 N. E. Rep. 125, where the same question was presented as in this case: “It should be kept in mind that the purpose of a mortgage is to furnish security, and that the property is usually left with the
Sargent v. Usher, 55 N. H. 287, came up under the following statute: “Any person to whom any horses, cattle, sheep, or other domestic animals shall be intrusted to be pastured or boarded shall have a lien thereon for all proper charges due for such pasturing or board, until the same shall be paid or tendered.” It was held that an agister to whom were intrusted for keeping, by the mortgagor, mortgaged horses, acquired no lien on them superior to that of a prior recorded mortgage, but that the lien of the mortgage would prevail. In Indiana, under a statute providing that “the keepers of livery stables, and all others engaged in feeding horses, cattle, and hogs, and other live stock, shall have a lien upon such property for the feed and care bestowed by them upon the same,” etc., such lien is held inferior to that of a chattel mortgage previously made and recorded. Hanch v. Ripley, 127 Ind. 151, 26 N. E. Rep. 70. And so in Michigan, under a statute giving a mechanic a lien for the value of his labor and skill, and authorizing him to retain possession of any article to wMch such labor and skill had been applied until such charges were paid, it was held that such lien was subordinate to that of a prior chattel mortgage, and that such mechanic’s lien would attach oMy to the mortgagor’s equity of redemption. Denison v. Shuler, 47 Mich. 598, 11 N. W.
Against the foregoing we find only the two opposing cases of Smith v. Stevens, 36 Minn. 303, 31 N. W. Rep. 55, and Case v. Allen, 21 Kan. 217. In the former case the court suggests, in answer to the apparent hardship of making the earlier lien subordinate to the later, that the mortgagee knew when he took his mortgage that the mortgagor could and might subject it to another lien which would be paramount to and destroy it pro tanto; but to us it seems more fairly to meet the situation of the parties to say that when the agister took the stock to pasture he knew that plaintiff then had an existing lien upon it. Filing his mortgage was just as efficient as actual notice would have been. The inquiry of the Indiana court in Hanch v. Ripley, supra, seems quite pertinent: “Had the appellant had actual notice of the appellee’s mortgage, and in the face of such notice had he taken the property to keep, what plausibility would there be in his claim to superiority of lien? What equity would there be in such a claim? None whatever.” In the later case of Meyer v. Berlandi, 39 Minn. 438, 40 N. W. Rep. 513, the Minnesota court, in referring to Smith v. Stevens, supra, says: The opinion rests “upon the doctrine of agency — authority implied from the circumstances — from the mortgagee to the mortgagor to create a lien for such a purpose.” So that, to adopt the broad rule that the lien of the agister upon stock intrusted to his care by the mortgagor in possession is superior to that of the prior recorded mortgage, the court must first hold, as matter of law, that the circumstance that the mortgagor is left in possession is sufficient in every case to support the conclusion of agency. What would be the effect, then, if the mortgagee expressly notified the
Fully agreeing with the Minnesota court that the agister’s lien, as against the prior mortgagee, must depend upon his consent, we think upon principle the true rule is that Ms lien, first established as required by law, can only be displaced when his consent or authority, express or implied, is affirmatively shown, and that a fact, like the retention of possession, which would not be received as competent evidence even tending to show authority to charge or affect the mortgagee’s interest in the property in any other way, cannot reasonably be taken as conclusive evidence of his consent that the property be subjected to the agister’s lien. Such consent may, of course, be shown by circumstances; but to show it requires something more than the simple fact of leaving the property in the mortgagor’s possession, for that is the general and almost universal custom, while for the mortgagor in possession to place such property out to be boarded or taken care of is unusual and exceptional; and, when the mortgagee simply does whai is usually done in such cases, he ought not to be taken as thereby consenting in advance that the mortgagor may do what is usually not done in such cases. In the other opposing case, (Case v. Allen, supra,) in the course of his opinion, Judge Brewer makes the inquiry: “Can he who has promised that the property shall, to the extent of its value, be security to the mortgagee for a certain debt, subsequently cast upon it a lien which shall take precedence of his prior contract, and to that extent diminish the value of the mortgagee’s security?” He concludes that he can, and so gives the agister’s lien precedence. It seems to us that in this state such conclusion would be against Comp. Laws, § 4858, which provides that “no person whose interest is subject to the lien of a mortgage may do any act which will substantially impair the mortgagee’s security.” We have hesitated a little over the' following words