Chittenden v. Pratt
Before: Paterson
Synopsis
Mortgage of Crops — Notice to Purchasers—Title of Mortgagee — Removal of Crops — Conversion — Assumpsit. — Where a mortgage of crops is duly executed and recorded, subsequent purchasers are charged with notice that the legal title is in the mortgagee, and that a wrongful removal of the property from the land could not divest the mortgagee of the lien of the mortgage; and the removal of such crops by a purchaser without payment of the mortgage lien is a conversion of the crops, for which the mortgagee has a right of action to recover their value in an action of assumpsit.
Id. — Sale to Creditors of Mortgagor — Notice to Pat Mortgage — Consent of Mortgagee to Sale — Waiver of Lien — Estoppel. — Where a mortgagor of crops purchased certain articles of third parties, who had actual notice of the mortgage, and promsied to pay therefor in the crops, hut before the crops were removed a bank which held the mortgage as collateral security wrote to the purchasers at the mortgagor’s request, notifying them of the mortgage, and that they would be held responsible if the mortgage was not paid before they settled with the mortgagor, whereupon the mortgagor informed the mortgagee that he had sold the crop at a good price, and would hold him to the same price if the sale was stopped, the fact that the mortgagee afterward wrote to the mortgagor, telling him to hold the purchasers of the crop to their agreement, and that no one had done anything to interfere with the sale, does not waive the lien, or estop the mortgagee from claiming the value of the crops sold from the purchasers.
Assumpsit — Conversion of Personal Propertt — Waiver of Tort. — Where one person converts to his own use the personal property of another, the latter may waive the tort, and sue in assumpsit for the value thereof.
Paterson, J. Both of these cases present the same issues, were heard on the same evidence, and have been brought here on appeal in one transcript.
In 1885 plaintiff leased to William Foster certain lands for the cropping season of 1885-86, and took from him a mortgage on the growing crop to secure the payment of the rent. By the terms of the mortgage the plaintiff “ had the right to enter upon the leased premises, and to cut and harvest said crop, thrash, sack, remove, and sell the same, and out of the proceeds of such sale to retain, first, all cost and expenses incurred in cutting, harvesting, thrashing, sacking, removing, and selling said crop, and, also, to retain out of such proceeds the principal and interest secured by said chattel mortgage.”
The mortgage was duly executed and recorded, and [181]defendants had actual notice of its existence. After the execution and recordation of the mortgage, and before the crop was harvested, Foster purchased certain articles of personal property from each of the defendants, and promised to pay for the same in hay at ten dollars per ton. When the crop was ready for harvesting, the plaintiff did not avail himself of the privilege set forth above, but permitted Foster to harvest the crop and prepare it for market. The defendant McRae received from Foster 90,225 pounds of hay, and defendant Pratt received hay amounting in value,.at ten dollars per ton, to $319.32; but the amount due each defendant from Foster was greater than the value of the hay each received at ten dollars per ton. On June 14, 1886, the California State Bank held the note and mortgage as collateral security, and at the request of plaintiff, who had heard that Foster intended to sell some of the hay to the defendants, sent a letter to each of the defendants, which was received on the following day, a copy of which follows: —
“Dear Sir,—:We hold a crop mortgage of Mr. Wm. Foster to Aretta Chittenden, on the crop raised on the Mrs. Chittenden ranch, to secure the payment of a note for twelve hundred and ninety dollars ($1,290), and interest. We understand that you have bought a part of the hay; hence, before you settle with Mr. Foster for the same, you will do well to satisfy yourself that the mortgage above spoken of has been paid; otherwise we shall hold you responsible.
“Yours truly, California State Bank.”
One of the defendants showed the letter he had received to Foster, whereupon the latter wrote to plaintiff, as follows:—■
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