McDevitt v. Jones

ST. SURE, J.

Appeal hy the defendant, W. F. J ones, as sheriff of the county of Fresno, from a judgment rendered against him in the sum of $7,890.13, in an action for conversion as the result of a sale by the sheriff of certain cottonseed of which plaintiff claimed to be the owner.

On the twentieth day of February, 1919, McDevitt Cotton Company, a corporation, leased to E. D. Skinner 931 acres of land in Fresno County for the purpose of raising cotton. Prior to August 14, 1919, plaintiff advanced in excess of $10,000 to Skinner to purchase seed for planting and pay labor and finance farming operations on the land. On August 14, 1919, Skinner informed plaintiff that through lack of funds he was unable to continue the farming operations, and offered to surrender the lease to plaintiff; whereupon an arrangement was made between the parties whereby plaintiff advanced to Skinner the sum of $22,500, and Skinner gave to plaintiff his promissory note, a crop mortgage, and an assignment of the lease as security for the note and all other moneys to be advanced by plaintiff to complete thft work of producing and harvesting the cotton crop. On De

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cember 15, 1919, plaintiff assigned the crop mortgage to Geo. H. McFadden Bros.’ Agency; the consideration named in the assignment was ten dollars, but the evidence shows that the real consideration was the note of plaintiff for $22,500, which amount plaintiff had borrowed from the agency and loaned to Skinner.

This mortgage, with Skinner as party of the first part and plaintiff as party of the second part, contained, among other provisions, the following:

“And the party of the first part does hereby covenant and agree to and with the said party of the second part, his heirs and assigns that he will well and carefully tend, take care of and protect the said crop while growing, and until fit to harvest and then faithfully and without delay, harvest and gin the same, and deliver the same immediately into the possession of the said party of the second part, or his assigns, to be by him held and disposed of for the payment of the debt hereby secured; that in default of either of the above acts to be done by the said party of the first part, the said party of the second part, or his assigns, may enter upon the premises and take all necessary measures for the protection of said crop, and may retain possession thereof, harvest, gin the same, and all expenses so incurred and all that may become necessary, in the keeping and care of said crop, as well as the hauling, storing and delivery thereof, shall be secured by this mortgage, and shall be first payable in United States gold coin, out of the money realized from the sale of said crop; that said party of the second part, or his assigns, shall and may at all times enter into the premises to view the same, or to take measures necessary for the protection of said crop, or his interests therein, and that upon harvesting thereof, he shall be entitled to the immediate possession of the same, and may haul and store the same, at the expense of the said party of the first part; and said party of the first part does for the purposes aforesaid, make, constitute and appoint the said party of the second part, and his assigns, his true and lawful attorney irrevocable, with full power to enter upon said premises and take possession of said crop, and take care of, protect, harvest and gin the same, in case of any default on his part of the covenants herein contained; and he does further authorize said party of the second part or his assigns to take