Schuler v. T. M. McCord Co.

BROWN, J. This is an appeal from an order of the district court of Hennepin county overruling plaintiffs’ demurrer to the answer of defendant Wood. The action was originally brought by the plaintiffs, who reside and are doing business at Wahpeton, North Dakota, against defendant T. M. McCord Company, a corporation doing business at Minneapolis, this state, to recover a balance due on a consignment to it. by plaintiffs of a car of wheat. The defendant Wood made claim to the balance due for the wheat, and, to protect itself, the McCord Company paid the money into court, and asked to have Wood inter-plead as a defendant in the action. The application was granted. Wood appeared and answered, setting up and claiming title to the money under and by virtue of a laborer’s lien acquired and perfected under the laws of the state of North Dakota, where the wheat was grown. The answer set up that the wheat, the proceeds of which are in controversy, was raised and grown by one Ployhar on his farm in Richland county, North Dakota, during the season of 1897; that one Joseph Shimek entered the employ of said Ployhar in April, 1897, under a contract, and continued in his employ as a farm laborer from said April to November, 1897; that the work, labor, and services rendered by him were reasonably worth the sum of $140, no part of which has ever been paid except the sum of $24.90. It further alleges that on November 9, 1897, said Shimek, under and [42] pursuant to the laws of North Dakota, duly perfected a lien upon the crops of wheat so raised and grown by said Ployhar by filing an affidavit and notice of lien in the office of the register of deeds in and for said Richland county, as required by the terms of such laws; that on November 18, 1897, said Shimek duly sold and transferred said indebtedness and lien, for a valuable consideration, to the defendant, who now owns and holds the same. Judgment is demanded that the money in question be ordered paid to defendant Wood. The plaintiffs demurred to this answer, and appeal from the order overruling it. The contention on the part of the appellants is that the lien relied upon by defendant, existing only by virtue of the laws of the state of North Dakota, has no extraterritorial operation, and cannot be enforced in this state; that the lien claimant.in such a lien cannot, after the property covered thereby has been removed into this state, enforce his lien by a seizure and sale of the property within this state; that the lien can only be enforced within the state of North Dakota. Whether this contention is sound we need not consider. It is sustained by some of the authorities. Donald v. Hewitt, 33 Ala. 534; Marsh’s Admr. v. Elsworth, 37 Ala. 85. The defendant Wood does not ask to foreclose the lien under which he seeks to obtain the fund now in court. The property covered by his lien has been converted into money, and the money is in court awaiting its judgment and order as to the ownership thereof. Wood claims it under his lien. The money having been brought into court under the provisions of Gr. S. 1894, § 5273, it is entirely competent for the court to determine the rights of the rival claimants thereto. Whether an action could be maintained in this state, based upon a statutory lien existing under the laws of another state, for the conversion within this state of the property covered thereby, as in cases of chattel mortgages, we need not consider. Such is not this case. The proceeds of the property covered by this lien are within this state, in the hands of the court, and claimed by rival claimants. And we hold that in such a case the rights of the respective parties may be heard and determined, and the holder of a statutory lien existing under the statute of a foreign state may assert his rights to such fund under such lien. [43] In other words, whether the holder of such a lien can foreclose the same, or maintain an action for the conversion of the property covered thereby, within this state, or not, he may, when the proceeds of the property have been paid into court, assert his rights thereto under his lien; and if, in equity, his rights are superior to his rival claimants, the fund will be awarded to him. The only question necessary to consider at this time is as to which of these parties has the best right to this fund. We think the defendant Wood shows the best right. He shows a valid right under his lien, while the plaintiffs show no right at all. It is nowhere alleged in the complaint that plaintiffs have any right to the wheat or its proceeds, that they were ever the owners thereof, or ever possessed any interest therein. They merely alleged that they consigned the wheat to defendant McCord Company for sale for their account. This is insufficient to show that they were the owners of the wheat, or that.they had any beneficial interest therein. Benjamin v. Levy, 39 Minn. 11, 38 N. W. 702. No doubt they could recover against the McCord Company, but they cannot recover against defendant Wood without showing some title or right superior to the lien. This they could do by a reply, if they in fact possess such superior right. Under the pleadings as they now stand, defendant Wood is entitled to judgment for the fund, and the demurrer to his answer was properly overruled. Order affirmed.