Horgan v. Zanetta

McFarland, J. In 1893 James Murphy was the lessee of a parcel of inclosed land called field No. 1. D. W. Cole owned adjoining land called field No. 2. Murphy had executed a chattel mortgage of the crop of grain growing on his said leased land to the plaintiff, [29]Horgan, to secure eight hundred dollars. In July Murphy commenced harvesting the crop and hauling it away from the land on which it had grown onto the said land of Cole, and finished doing so in the early part of August. On September 1st Cole brought suit against Murphy and attached the grain. Jensen and Lauritzen also brought suit against Murphy, and upon either the 1st or 2d of September attempted to levy an attachment on said grain, but it is contended that for certain reasons this last attachment was invalid. However, Cole recovered judgment in his case against Murphy on September 7th, and Jensen and Lauritzen recovered judgment on September 8th; and executions in both cases were immediately issued and levied on the grain—the one on September 7th and the other on September 8th—and the grain was sold to satisfy these executions by the defendant, Zanetta, who was constable, and who justifies under these attachments and executions. On September 15th plaintiff served a notice upon defendant, claiming “ the possession of or a lien” upon the grain by virtue of the said chattel mortgage. Defendant proceeded and sold the grain under the executions without regarding the alleged mortgage lien; and thereafter plaintiff commenced this action to recover the eight hundred dollars secured by said mortgage, with interest and damages. The court rendered judgment for plaintiff for five hundred and thirty-five dollars and seven cents, being the value of the grain as found by the court, together with damages, attorneys’ fees, and costs. Defendant appeals from the judgment and from an order denying a new trial.

Section 2972 of the Civil Code, as amended in 1878, provides that the lien of a mortgage on a growing crop continues “ as long as the same remains on the land of the mortgagor.” Prior to 1878 the lien continued only until the crop was severed from the land. In the case at bar. the crop had been removed from the land of the mortgagor at the time the attachments and executions were levied on it by the appellant; therefore, the lien of [30]the mortgage had prima facie been extinguished. It therefore devolved upon respondent to remove this prima facie case by showing that the case at bar is an exception to the general rule. This he attempted to do by evidence of facts which, he contends, estop appellant from denying the continuance of the lien. The facts substantially are these: The land on which the crop was raised was rough and hilly, and not suited to the placing of a machine for threshing; and, after Murphy had commenced harvesting, there were conversations between him and Cole which resulted in Murphy hauling the grain onto Cole’s land, wnich was level and adapted to the use of a threshing-machine. The court finds that Cole “ represented ” to Murphy these facts about the character of these two different tracts of land as to their respective adaptability to threshing, and requested him to take the grain onto Cole’s land; and, as there was no conflict of evidence on the point, the finding must be taken as correct. It is quite evident, however, that Murphy, who lived on field No. 1, must have had as full a knowledge of the situation as Cole; and the court finds that “ the fact was as represented by Cole, owing to the roughness of the ground in said field No. 1.” It is not found that Cole made any false representation in the premises. The court, however, found that Cole made the representation, “ having then actual knowledge of said mortgage,” and for the purpose of defeating the same; but we find no evidence to support said finding in the statement on motion for a new trial which expressly declares that it contains “ all the testimony given by both parties on the subject of the removal of the grain or the knowledge of Cole of plaintiff's mortgage.” Cole testified positively that he knew nothing of the mortgage when the grain was removed, and did not know of it until about the time of the attachment, which was September 1st.