Goodyear v. Williston

By the Court, Sprague, J.: This is an appeal from the judgment, upon the judgment roll alone, by the defendants, who contend that the findings do not sustain the judgment. It is claimed that the findings show that the defendants were not jointly interested in the personal property sought to be recovered by plaintiff, and that they did not take joint possession of such property, or any portion thereof; hence no joint judgment could be properly entered against them. The findings show that defendant Hobbs, as Sheriff of Solano County, by virtue of an execution in his hands in favor of Williston and Brown-lee, and against McGraue, on or about the 15th day of August, 1870, “ under the direction of said Williston, entered upon and attached the property described in the complaint; * * * that at the time of the entry of the Sheriff on said tract he had the mortgage in his possession, and with said attachment [execution], and under said mortgage, he attempted to and did take possession of all said wheat and barley, and the other property described in the complaint, and left the same in the possession of one Casey, as his keeper and also as agent of said defendant Williston, and then took the property in the complaint described, and detained and still detains the same from the plaintiff".” These facts establish a joint taking and detention by the defendants, which, if wrongful, clearly sustain a judgment against them jointly, as trespassers, whether Williston assumed to act as mortgagee of a portion of the property, or as joint judg [16] ment creditor with Brownlee. The defendant Hobbs was clearly a trespasser, upon the facts as found; as no portion of the property was at the time subject to execution as the property of McGrane; and Williston, in directing the levy, was a joint trespasser with him as to all the property except the wheat and barley. As to the wheat and barley, it is claimed that Williston was justified in taking possession thereof, under his mortgage of the growing crop, of April 29th, 1870. The validity of this claim involves the construction of the seventeenth section of the Act of May 19th, 1850, “concerning fraudulent conveyances and contracts,” as amended April 9th, 1856, which section, as amended, reads as follows: “Sec. 17. Ho mortgage of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee; provided, that a mortgage upon growing crops, executed, acknowledged, and recorded like mortgages upon real estate, shall be valid as against third parties without such delivery of possession; but the lien of such mortgage shall cease as against subsequent purchasers unless possession of such crops, when harvested, be delivered to the mortgagee, as required in other eases of mortgage of personal property.” (Stats. 1856, p. 87.) It appears from the findings that McGrane, the mortgagor, Avho had sown and cultivated the grain, on or about the 20th day of July, 1870, cut the same, and afterwards, and prior to the tenth day of August thereafter, had it in stacks and shocks; that afterwards, on said 10th day of August, 1870, said McGrane, by bill of sale, duly executed, bargained and sold to plaintiff all said wheat and barley, and delivered the possession thereof to him, who thereupon took and retained possession of the same, and was in possession thereof at the time the defendants entered and took possession, and [17] that such sale to plaintiff was made in good faith and for a valuable consideration. The question here presented is whether, under this statute, the lien of the mortgagee, Williston, as against the purchaser, Goodyear, had ceased to exist on or prior to the fifteenth day of August, when he claims to have taken possession of the wheat and barley by virtue of his mortgage. From a careful reading of the seventeenth section it seems obvious that the intent of the Legislature was to protect the lien of a mortgagee of growing crops by a recordation of his mortgage, without an actual and continued change of possession from the mortgagor to the mortgagee of the lands upon which the crop is growing, until such crop is matured and so far harvested as to be severed from the land and placed in a condition capable of manual delivery and transportation; and when this condition of the crop is attained, to make a continuance of the mortgage lien as against subsequent purchasers in good faith, dependent upon the then actual delivery of the crop to the mortgagee, and his retention of the possession thereof. This condition of the crop was attained prior to the 10th day of August, 1870, on which day the plaintiff purchased and took the actual possession of it from the mortgagor. The mortgagee does not claim to have taken, or attempted to take, possession, until the plaintiff had been in the actual possession for five days; and I am satisfied the learned Judge of the Court below was correct in his view that the plaintiff, as purchaser of the grain in the stack and shock, took the same relieved of the defendant Williston’s mortgage lien. With these views it becomes unnecessary to notice the questions discussed by counsel arising upon the original lease or cropping contract between plaintiff' and McGrane. Judgment affirmed. [18] By Crockett, J., concurring specially, Rhodes, C. J., concurring: I concur in the judgment, on the ground that under the contract of November, 1869, between Goodyear and Mc-Grane, the title of the growing crop, as it was grown, vested in Goodyear, who was entitled to retain one fourth to his own use, with an absolute power of sale and disposition as to the remainder, retaining out of the proceeds his advances and all indebtedness due to him from McGrane, and accounting to the latter for the remainder of the proceeds. Under this contract McGrane never had any title to the growing crop, but only an interest in the proceeds. I concur with Mr. Justice Sprague as to the joint liability of the defendants, but express no opinion on the other point discussed in his opinion.