Campodonico v. Santa Maria Bean & Grain Co.

[340]

WORKS, P. J.

The plaintiff in this action was the holder of a mortgage on a growing crop of oats which was the property of the mortgagor, one Sutton. While the latter was engaged in threshing the oats, on his own land, it was agreed between him and plaintiff that he, Sutton, would convey the threshed grain to a certain warehouse and would there store it in plaintiff’s name. Sutton hauled the grain to the warehouse, but stored it in his own name, that is, he took warehouse receipts showing a storage by himself instead of by plaintiff. Later he sold and conveyed the oats to defendant by indorsing to it the warehouse receipts. Sutton failed to pay the mortgage debt and decamped with the proceeds of the sale of the grain. Defendant had both actual and constructive notice of the fact that Sutton’s crop was under mortgage to plaintiff. This action was commenced for the purpose of procuring judgment for the amount due on the promissory note for the payment of which the mortgage was security. Judgment was rendered accordingly and defendant appeals.

Appellant contends that the complaint failed to state a cause of action, that certain findings of the trial court were not sustained by the evidence, and that the evidence failed to support the judgment. All of these points depend for solution upon the single general question whether defendant was liable to plaintiff upon the facts above stated.

It is undoubtedly the general rule that the lien of a mortgage on a growing crop is lost by a removal of the crop from the land to which it was attached

(Horgan

v.

Vanetta,

107 Cal. 27 [40 Pac. 22]), but the rule has its notable exceptions. One of these exceptions, for instance, operates in those cases in which the removal of the crop is tortious

(Chittenden

v.

Pratt,

89 Cal. 178 [26 Pac.

626]; Bank of Woodland

v.