Wilkerson v. Thorp

THE COURT.

The facts of this case are substantially as follows: On November 30, 1896, the plaintiff made a written lease to defendant Thorp of certain real estate in Los Angeles county for the term of one year from the date thereof, for the rental of eight hundred and fifty dollars, one-half to be paid on or before the first day of August, and the remainder on or before the thirtieth day of October, 1897. The lease was not acknowledged nor recorded. In addition to the usual covenants it contained the following clause:

“And the said party of the second part also further agrees that as soon as the crop which is hereafter to be put in by the second party is out of the ground and growing, he will give said first party, as additional security for said rent, a crop mortgage on all of the said crop so put in.”

On March 1, 1897, the defendant Thorp, for a valuable consideration, executed a mortgage to appellant upon the growing crops, and crops to be grown during the year, upon the premises described in the lease, as security for four hundred and sixty-nine dollars and, sixty cents. This mortgage was properly acknowledged, verified, and recorded on the last-named date. The mortgage, after describing the land on which the crop was growing and to be grown, recited, “being land leased by one Thomas Wilkerson (receiver) to said Jesse W. Thorp by certain indenture of lease dated November 30, 1896.” On April 12, 1897, the defendant Thorp executed to plaintiff, as security for the said eight hundred and fifty dollars rent agreed to be paid by Thorp, a mortgage upon- the growing crops upon the leased premises. This mortgage recited that it was given in pursuance of the “covenants and stipulations in said lease contained.” It was properly verified, acknowledged, and recorded. This action was brought to recover one hundred and thirty-five tons of hay, raised upon said leased premises during'the year 1897, being part of the crop described in both mortgages, or, in case a return could not be had, for nine hundred dollars, the alleged value thereof. The ease was

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tried before the court, findings filed, and judgment entered for plaintiff as prayed. This. appeal is from the judgment and from an order denying appellant’s motion for a new trial.

The main question at the trial was as to whether the mortgage of appellant gave him the first lien upon the hay so grown upon the leased premises. The court found that the appellant, at the time of the making and execution of his mortgage, knew the defendant Thorp had leased the premises from plaintiff, and “well knew that by the terms of said lease and the covenants therein contained the said Thorp, as a part of the consideration for said lease, covenanted and agreed that he, defendant Thorp, would execute a mortgage upon all the crops sown upon said place as soon as the said crops were up and growing, to secure the rents reserved in said lease.”