Bank of Woodland v. Duncan

Britt, C. Replevin for four hundred and fifty sacks of wheat, part of the crop grown during the cropping season of 1892-93 by J. R. and B. F. Davisson on certain large tracts of land farmed by them as copartners in Yolo county. Said copartners made two negotiable promissory notes in favor of one Wolf Levy, the first dated November 9, 1892, for the sum of $4500, and the second dated April 5,1893, for $2958.78, each payable with interest one month from its date, and each secured by a separate mortgage executed by the Davissons upon their said crop growing and to be grown. It was provided in each mortgage that the mortgagors would care for and protect the mortgaged crop while growing and until fit for harvest, and then faithfully harvest, thresh sack, and deliver the same immediately into the possession of said Levy or his assigns, to be held and disposed of for the payment of the debt secured thereby; that in case of the default of the mortgagors in any of those particulars the mortgagee or his assigns might protect, harvest, etc., the crop, and the expenses incurred in that behalf should be secured by the mortgage and be first payable from the proceeds of sale; that the mortgagee or his assigns should upon the harvesting of the crop be entitled to the immediate possession thereof and to haul and store and sell the same, applying the net proceeds to the payment of the note secured by the mortgage, and rendering the overplus, if any, to the mortgagors. Both mortgages were duly recorded. The consideration was prior indebtedness of the Davissons to Levy at the date of the notes respectively. Levy in turn was indebted to the Bank of Woodland, plaintiff here, in a large amount, and forthwith after the receipt of each of said notes and before the maturity thereof he indorsed and delivered the same together with the mortgage by which it was secured to the plaintiff as collateral for his indebtedness to the latter. There was no formal assignment of the mortgages apart from the indorsement and delivery of the notes. Concurrently with the execution of the mortgages Levy orally agreed with the [414]Davissons that he would advance to them money “upon the security of the mortgages” for the purpose of harvesting their crops, and threshing, sacking, and otherwise protecting the same; and it had been his custom to make to them advances for similar purposes during a series of six or eight years before the transactions here in question. In June and July, 1893, Duncan, the defendant, under employment of the Davissons, headed part of the crop, for which service they became indebted to him in the sum of $590.00; they gave him an order for this sum on Levy, who refused payment, though it seems that previous to this time—the close of July, 1893—he had honored some similar demands of the Davissons; thereupon the Davissons directed defendant to take from the grain—which had then been threshed and sacked but was yet lying in the fields where it was grown—enough to secure his said account; accordingly he removed the wheat for which he is now sued; it was not taken from that part of the crop headed by him. Defendant took the wheat against the protest of plaintiff’s agents; plaintiff was asserting claim to it and was itself preparing to remove the same; whether it had acquired actual possession is a disputed point, but not important to be decided. Upon the commencement of the action plaintiff obtainedpossession of the wheat by process of claim and delivery, and before the trial sold the same together with the rest of the crop, credited the proceeds on the notes and also to Levy’s account, and reindorsed the notes to Levy without recourse—there being a balance unpaid on them. Defendant pleaded the facts of such sale and retransfer by way of supplemental answer. He also filed a cross-complaint asserting his right to possession of the wheat in controversy, and that plaintiff wrongfully took the same, to his damage to the amount of his account against the Davissons, for which he prayed judgment. The judgment was that plaintiff take nothing and that defendant recover as prayed in his cross-complaint.