Bank of Tehama County v. Federal Realty Co.

THOMPSON, J.

This action was instituted by the Bank of Tehama County to recover $1100 placed in escrow with the Bank of Willows for the purpose of securing the release of a band of sheep, held by the defendant, Federal Realty Company, under claim of an agistor’s lien, and upon which the plaintiff bank holds a chattel mortgage. It is expressly stated in the letter from the plaintiff to the Bank of Willows, which contains the agreement of the parties and the escrow instructions, and which is attached to the complaint as “Exhibit B”, that “the said deposit of $1,100 is to be held by your Bank as in lieu of the possession and claim of possession of said Federal Realty Company” until final determination of the controversy. The First National Bank of Willows, substituted as the escrow holder after the liquidation of the Bank of Willows, filed a waiver of its right to appear in the action and its consent to be bound, as to the impounded sum, by any judgment entered therein. The Federal Realty Company filed its answer and cross-complaint asking for the delivery to it of the escrowed money, and from a judgment in favor of the defendant the Bank of Tehama County has taken this appeal. The validity of the appellant’s chattel mortgage upon the sheep in question is admitted by the respondent in its brief and, on page 5 of its opening brief, appellant makes the following concession: “We are willing to admit, and do hereby admit that if Defendant Federal Realty Company indeed had a valid Agistor’s lien at and during the time these Sheep were pastured upon its lands, then such and said Lien did take precedence over the said Chattel Mortgage of Plaintiff.”

[335]

The sheep in question belonged to A. N. Fraga. The pasturage was arranged by agreement between Fraga and the defendant, Moutrey, who was the agent for the defendant Federal Realty Company, the Central Savings Bank and the Central National Bank as to various tracts of land owned severally by these corporations in Butte and Glenn Counties. With regard to the pasturing of the sheep, the trial court found that, on or about November 1, 1931, Fraga and Moutrey entered into an agreement whereby Moutrey “agreed to pasture said sheep and other sheep owned by said A. N. Fraga on the lands in Butte and Glenn Counties belonging to said above named corporations at a price or pasturage charge of fifteen (.15) cents per head per month, said A. N. Fraga to provide the necessary herders and said agreement to continue in force as long as any feed remained on any of the lands of the said respective corporations; that on the 1st day of November, 1931, in accordance therewith, said A. N. Fraga delivered 1000 head of sheep into the possession of said defendant, A. B. Moutrey at the Chico Ranch in the County of Butte, and on the 10th day of November, delivered an additional 1000 head of sheep into the possession of said A. B. Moutrey for pasturage purposes; that said sheep were continuously in the possession of and pastured by A. B. Moutrey on the respective lands of said named corporations and for their respective benefit, and on the 13th day of December, 1931, said sheep were removed to the lands of the Federal Realty Company, in the County of Glenn, and delivered into the possession of said Federal Realty Company, a corporation, for pasturage purposes in accordance with said agreement; that said sheep remained continuously in the possession of said Federal Realty Company on its lands in the County of Glenn until the 14th day of May, 1932, when said sheep were delivered to said A. N. Fraga in pursuance to the agreement set out in Plaintiff’s complaint and marked ‘Exhibit B’ (the agreement already referred to) ; that at all times from December 13, 1931, to May 14, 1932, said sheep were held by said Cross-complainant Federal Realty Company on its claim of lien for pasturage thereon." It was also found that the pasturage charge due and unpaid was the sum of '$1165.