Bradley v. Gelkinson

Day, J. i. mortgage: of crops * priority ¿£. I. The mortgage under which the plaintiff claims was executed November 17, 1877, and was recorded February 18, 1878. The mortgage under which defendant « — < cj claims was executed March 9, 1878. Both mortgages are upon the crops to be grown upon the same land for the year, 1878. No question is made as to the validity of either mortgage, the only question involved in relation to them [303] being as to which is paramount. The mortgage under which the plaintiff claims was executed and. recorded before the defendant’s mortgage was executed. The defendant’s mortgage is upon certain wheat, flax, barley, and oats in the bin of Heatham, but the mortgage provides that the specific property mortgaged shall be sown, and the mortgage shall attach to the crops grown therefrom. The only theory upon which the defendant’s mortgage can have precedence, is that it was given to secure the price of the seed from which the crop was grown. We think, however, that the consideration for which the mortgages were given is immaterial. The mortgages are entitled to precedence in the order of their execution and recording. The mortgage under which plaintiff claims was on record when that of the defendant was executed and whatever rights the defendant acquired ai’e subject to the superior claim of plaintiff. 2 ._. estoppel. II. The facts alleged in the fourth count of the answer do not constitute an estoppel. The defendant, under his mortgage, had a right to take possession of the grain, and pay 0g- fljg plaintiff’s superior lien, and apply the balance to his own claim. The plaintiff had a right to suppose that defendant had knowledge of the mortgage under which plaintiff claims, which was upon record, and that he was taking possession of the crops subject to the plaintiff’s mortgage. The mere fact that he did not assert his claim does not estop him to do so now. III. The facts alleged in the fifth-count of the answer are pleaded as a complete defense. That they do not constitute a complete defense is apparent from what has already been said. Whether the defendant would be entitled to a reasonable compensation for harvesting and taking care of the crops, and would be responsible only for the sum realized by the employment of^reasonable care and dilligence, is a question which this appeal does not present, and which we do not determine. Reversed.