California Packing Corp. v. Stone

PLUMMER, J.

This is an appeal in an action brought by the plaintiff to recover from the defendants and appellants the possession of 2,600 sacks of barley and 400 sacks of oats or the value thereof in the sum of $3,750. The plaintiff had judgment against the appellants and against Garreóte & Agnew, a copartnership, for the recovery of 1,918 sacks of barley or the value thereof in the sum of $1,918 in the event that recovery could not be had. The defendants, Garrette & Agnew, have not appealed. It appears from the transcript that the barley in question was raised upon a certain tract of land situated in the county of Butte, farmed and operated by the appellants, that on or about the sixteenth day of June, 1920, the appellants executed a certain crop mortgage and delivered the same to the plaintiff and respondent herein covering all crops to be grown upon the premises hereinbefore referred to and described in said mortgage, including all crops growing or to be grown on said premises during the seasons of 1921-1925, inclusive. The points made by appellants for reversal are: First, that the mortgage does not cover the barley crop grown upon said premises; second, that the plaintiff was not entitled under the terms of the mortgage to the possession of the barley; and third, that this is an action in claim and delivery or replevin, and that the appellants were not in possession of the barley crop at the time of the commencement of this action. That the first contention has no merit is readily perceived by the mere reading . of the mortgage. The granting clause of the mortgage is as follows: “Does by these presents grant, bargain, sell and convey to the mortgagee, and its successors and assigns forever, all the crops now growing or to be grown during the seasons 1921-1925, inclusive, on the following described real property.” (Then follows a description of the property upon which the barley in question was grown during a year covered by the mortgage.) Then further along, after providing for the right of the mortgagee to enter upon the premises, it is further specified that upon “harvesting thereof it [plaintiff] shall be entitled to the possession of the same and may haul,

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store and ship the same at the expense of the said mortgagor.” It is also provided in said mortgage that in case of any default on the part of the mortgagors, the mortgagee is authorized to take possession of the crops and sell the same. It is also provided in said mortgage that upon harvesting the crops grown on said premises the mortgagor will deliver the same immediately into the possession of the mortgagee or its successors. It is further covenanted that the mortgage is intended to secure not only the principal sum [mentioned in the mortgage but also advances that might be ’made thereunder. The last clause of the mortgage is as follows: “This mortgage is also intended to secure the performance of the term fruit contract between the mortgagors and the mortgagee, covering the sale of the crops of fruit on said premises for the years 1921 to 1925, inclusive.” It is upon this last provision that appellants base their argument that the mortgage did not cover the barley crop and hence that the plaintiff was not entitled to possession thereof.