Sporer v. McDermott

Hastings, C. This is an action brought by the plaintiff to obtain the specific performance of a rent contract to secure $275, the rental of a farm for one year from March 1, 1900, by a chattel mortgage upon the crops raised upon the farm. The petition includes two causes of action, and alleges removal of certain fixtures from the place, and asks an — 534 — injunction against any disposition of the crops or the removal of the fixtures. The court finds, as to the latter, that they belonged to defendant, and plaintiff had no interest in them. Of this finding no complaint is made. The court finds, as to the claim for specific performance of the agreement to mortgage and the enforcement of the lien of such mortgage, that plaintiff owned the land; that he leased it to the defendant, McDermott, for one year from March 22, 1900; that the latter joined in the execution of the lease alleged, and knew the contents of it; that defendant raised on the place the eighty acres of corn on which the lien was sought; that he sold the corn to the other defendant, with the purpose of defeating plaintiff’s lien and not in good faith; that defendant, Hotchkiss, before the purchase of the corn or the payment for it, knew of defendant’s intention and fraudulent purpose, and knew that plaintiff claimed a lien on the corn for the rental of the land, and is not entitled to be considered an innocent purchaser; that the agreed rental was $275, payable February 1, 1901; that plaintiff never obtained possession of the property, and that defendant at all times repudiated and denied any liability under the agreement to mortgage the crops, and was at the time of the commencement of the action wholly insolvent. The court found as conclusions of law: First, that the agreement in the lease relating to the mortgage of crops was too indefinite to warrant a decree of specific perfonnance; second, that it was unenforceable, because the property was not in existence when the lease was made; third, that the agreement carried no lien; fourth, that the plaintiff was entitled to no specific performance of the alleged agreement- to execute a mortgage, and dismissed plaintiff’s action. Subsequently the second ;and third findings were stricken out, in passing upon a motion for a new trial, but the motion itself was overruled. It should be stated that to the plaintiff’s petition a demurrer was filed, on the ground of want of jurisdiction of — 535 — defendant’s person-; want of jurisdiction of subject matter of tbe action; and that the petition did not state facts suf- • ficient to constitute a cause of action. This demurrer was overruled by the court, and plaintiff in error now says that such action is not consistent with the rendering of a judgment for dismissal, after finding substantially all the facts alleged to be true; and that the decree is wrong because of this ruling upon the demurrer. It does not seem necessary to discuss this contention at any length. Nothing is cited to sustain it except the case of Marvin v. Weider, 31 Neb. 774, Dolen v. Buchanan, 43 Neb. 854, and Kleckner v. Turk, 45 Neb. 176. The first of these cases merely remarks that, in districts having more than one judge, any ruling made by one of them is to be respected by any other judge trying the same case. It finds the several rulings first entered to have been right, and reverses the subsequent action as being both wrong and contrary to the first ruling. The other two cases in-, eidentally refer to this one with approval, in finding that they presented no occasion for applying the doctrine. None of them go to the length of holding that a ruling on a demurrer, in the same court, involves necessarily an adherence to that ruling throughout the case, if it is found to be wrong. It should merely be recognized as having-been made and valid, until properly set aside. The ruling upon the demurrer, surely,- can not conclude a trial court from passing- upon the evidence in any way, and, in this instance, two causes of action are found against by the trial court, and no complaint is made as to one of them. The alleging of this cause of action may have led to the overruling of the demurrer. Thé real question in this case arises upon the first and fourth conclusions of law, as found by the court when applied to the agreement in question; that agreement is as follows: “Sporer hereby leases the southeast quarter section 32, town 14, R. 5, Saunders county, Nebraska, for a period of one year from the first day of March, 1900, on the following conditions: — 536 — “Two hundred and seventy-five (275) dollars, payable on the 1st day of Feby., 1901, drawing ten per cent, interest after maturity, said note to be secured by a chattel mortgage on all the crop planted and sown on the above described land, except a small parcel of land to be planted to corn containing one acre, more or less, and a garden patch for vegetables, said mortgage to be executed as soon as crops are planted on or about the 10th day of June, 1900. Thomas McDermott agrees to take good care of dwelling house, other houses, barns, sheds, granaries, pens, cribs and fences and return the same in as good condition as they now are, wear and tear and accidents excepted, and to receive them as they now are, except three dollars repair on the dwelling house. “Signed this 22d day of March, 1900. “Geo. Sporer, Ms “In presence of Thomas X McDermott. “J. K. Van Demark.” mark- As there was no complaint or objection on the part of . the defendants to any of the trial court’s findings, and they are seeking to uphold the decree, they are concluded by them; these findings show that the farm was rented to defendant, McDermott, in accordance with this agreement, that the agreement was for $275 rent, and that it was duly executed by McDermott. In all these particulars, the contract is rendered sufficiently definite, by performance, by each of the parties. , The only question is, whether or not the contract was definite and precise enough to call for its specific performance in the single matter of mortgaging the crop. The trial court, by implication, in its original two findings, had determined that there was an agreement on the part of the defendant to mortgage this crop. It distinctly ascertained the amount of that mortgage and when it was payable; the agreement is certainly specific as to both what was to be secured and how, and upon what the security was to be given. The status of the property as found by the court clearly warrants the interposition — 537 — of a court of equity, if the agreement is plain and distinct enough to be specifically enforced, in the particular respect in which performance was refused. The doctrine stated in 3 Parsons, Contracts (9th ed.), 354, cited by plaintiff in error, seems clearly applicable: “The contract of which performance is sought must be clearly proved, and its terms should be so specific and distinct as to leave no reasonable doubt of its meaning. But the court is bound by no technical rules in this respect. Nor does it greatly regard the form of the contract.” It seems clear that plaintiff was entitled to have his mortgage, and to .its enforcement as against the defendant, McDermott, and his fraudulent grantee, Hotchkiss. It is, hoAvever, claimed by defendants in error that the two findings, as originally made by the trial court, that this agreement to mortgage a crop not yet planted, was wholly Amid, is the true rule of our state, and that the decree should be upheld, notwithstanding the trial court afterwards struck out those findings. This is asked on the ground that the decree is right, and any Avant of consistency in the findings and decree Avould be error without prejudice. It is true that there are several cases cited by the defendants in error from this court, holding that a mortgage upon property not then in being creates no lien. None of these decisions, hoAvever, go so far as to say that an agreement thereafter, and Avhen the property shall be in existence, to mortgage it, is invalid, and Ave do not see hoAV such a. rule of law could be sustained. An executory contract for the sale at some time in the future of property not then in existence is entirely Aralid; indeed, the right to make it is almost, essential to the carrying on of many manufacturers-' and producers5 business. It would seem that if an agreement, at a future date to transfer absolutely the title to property thereafter to be produced, is good and valid, an agreement to transfer such title conditionally, and by wav of mortgage security, would be equally good and valid, notAvithstanding that the property — 538 — was not at that time in existence. Of course, if the property never should come into existence, there could be no recovery of damages or of specific performance of the agreement to mortgage it. But where, as in this case, it did come into existence, and all of the circumstances contemplated by the agreement arose, it would seem that there could be no doubt of its validity. In the recent and carefully considered case of Battle Creek Valley Bank v. First Nat. Bank, 62 Neb. 825, contracts of sale and of mortgage are distinctly placed upon the same footing. It is, of course, necessary in this state, as there set forth, that, in order to create a legal right in a legal thing, there must be a legal conveyance of that thing, while in existence. In a court of law an executory contract of sale conveys no right to the thing itself, but in a court of equity, and in an action for specific performance, the legal doctrine would -seem out of place. The action itself is brought to supply and obtain performance of the intervening act, which is necessary to convert a mere contract right against the promisor, into an actual lien against the thing itself. As against such an action, where the facts pleaded and proved rendered this remedy appropriate, and even necessary, it would seem absurd to say that the legal right does not yet exist. This action is brought expressly to enable plaintiff to acquire it when inequitably refused. It is held, on good authority, to apply to contracts relating to things not then in being. 3 Pomeroy, Equity Jurisprudence (2d ed.), secs. 1236, 1237. It is not necessary, however, in this case to decide whether or not such an executory agreement is enforceable generally. It seems clear that it must be so as to crops on land where the agreement is to secure rent. At the place in Pomeroy’s Equity, above cited, after stating that a sale or mortgage of things not in being gives no legal title, he excepts things which have a potential existence, and in the note cites crops to be grown on lands demised in consideration of such an agreement. A right in such crops under such an agreement, has been so often upheld that it — 539 — is not necessary to cite cases. Examples are Arques v. Wasson, 51 Cal. 620, 21 Am. Rep. 718, and Apperson & Co. v. Moore, 30 Ark. 56, 21 Am. Rep. 170. (Filed September 17, 1903.) It appears that the corn crop was sold to one who was entirely aware of the agreement and of the plaintiff’s claim under it, and that it brought about $800. It is recommended that the decree of the district court be reversed and the cause remanded' with directions to enter a decree for the plaintiff for $275 and interest at seven per cent, per annum from February 10, 1901, and costs. Day and Kirkpatrick, CC., concur. By the Court: For tbe reasons stated in tbe foregoing opinion, tbe decree of tbe district court is reversed and tbe cause remanded with directions to enter a decree for tbe plaintiff for $275 and interest at seven per cent, per annum from February 10, 1901, and costs. Reversed.