Wallin, C.- J.
The facts which we deem necessary to a proper disposition of this case, as we gather them from the record, may be briefly stated as follows: In the month of May, 1894, one Lee executed and delivered to plaintiff his promissory note, payable to the plaintiff, for $61.20, and to secure the payment of such note said Lee made and delivered to the plaintiff his chattel mortgage, describing certain land in Richland County, and [90] whereby he mortgaged to the plaintiff all crops to be sown, grown, or harvested upon such land in the year 1894. The note was given to plaintiff for the purchase of seed wheat, which Lee sowed upon the land, and from which Lee; in 1894,'raised, harvested, and threshed a crop of wheat, which aggregated in value a sum much greater than the amount due on the note at the time of the trial. For a short time prior to seeding the land, and during seeding time, Lee resided upon the land, but at all other times in question he resided elsewhere in the vicinity of the land. A son of Lee testified, in' substance, as follows: “My father was in possession of the land in the spring and summer of 1894, and raised wheat on it. I and my father and the hired man did the work. My father woidced the land.’’ The crop which he raised upon the land that year was from seed wheat furnished him by the plaintiff. The wheat was thx-eshed in September, 1894. There was about 1,100 bushels threshed. This wheat was hauled to defendant’s elevator, and was delivered to the agent in chax-ge of the elevator. The fact of the delivery of the wheat and its value are not conti'overted, nor is the fact that a proper demand was made for the wheat by the plaintiff before bi'inging the action. Thex-e is no claim that the note or any part of it was ever paid. The action is brought to recover damages for the convei'sion of the wheat, and the plaintiff demands judgment for the sum due on the note, and for certain items of disbursement made by plaintiff in his efforts to x-ecover the possession of the wheat fx'om the defendant. Defendant offex-ed testimony of a documentary character to show that, at the time in question, and prior thereto, and ever since, one Benson, who x-esided some eight miles- distant fi'om the land, was the owner, and was seized of a fee-simple title thereto. . The testimony was admitted against objection, but, in the view we take of the case, it will be necessary to pass upon the technical competency of the evidence, and we shall assume, for the purpose of the case, that Benson was the owner of the land prior to and dux'ing all the time in question. Benson is not a party to the action, nor does it appear that he has at any time [91] asserted a claim to the crop, or to any part of it. At the close of the testimony defendant’s counsel requested the trial court to return a'verdict in its favor, which request was denied, and this ruling is assigned as error in this court. Error is also assigned upon the following instruction, given to the jury: “Now, I instruct you that, because the title to this land was in Mr. Benson, it does not necessarily follow that he owned the crop, because the owner of the land might have rented it. There is no testimony upon the point as to the right Mr. Lee had to the possession of the land, but you have heard the testimony as to who sowed the crop, and who threshed it, and you will determine who owned the crop — Mr. Lee or Mr. Benson. If Mr. Lee owned the crop, then the lien of the mortgage attached, and the plaintiff had a right to the possession of the wheat.” The verdict and judgment were for the plaintiff.
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Wallin, C.- J.
The facts which we deem necessary to a proper disposition of this case, as we gather them from the record, may be briefly stated as follows: In the month of May, 1894, one Lee executed and delivered to plaintiff his promissory note, payable to the plaintiff, for $61.20, and to secure the payment of such note said Lee made and delivered to the plaintiff his chattel mortgage, describing certain land in Richland County, and [90] whereby he mortgaged to the plaintiff all crops to be sown, grown, or harvested upon such land in the year 1894. The note was given to plaintiff for the purchase of seed wheat, which Lee sowed upon the land, and from which Lee; in 1894,'raised, harvested, and threshed a crop of wheat, which aggregated in value a sum much greater than the amount due on the note at the time of the trial. For a short time prior to seeding the land, and during seeding time, Lee resided upon the land, but at all other times in question he resided elsewhere in the vicinity of the land. A son of Lee testified, in' substance, as follows: “My father was in possession of the land in the spring and summer of 1894, and raised wheat on it. I and my father and the hired man did the work. My father woidced the land.’’ The crop which he raised upon the land that year was from seed wheat furnished him by the plaintiff. The wheat was thx-eshed in September, 1894. There was about 1,100 bushels threshed. This wheat was hauled to defendant’s elevator, and was delivered to the agent in chax-ge of the elevator. The fact of the delivery of the wheat and its value are not conti'overted, nor is the fact that a proper demand was made for the wheat by the plaintiff before bi'inging the action. Thex-e is no claim that the note or any part of it was ever paid. The action is brought to recover damages for the convei'sion of the wheat, and the plaintiff demands judgment for the sum due on the note, and for certain items of disbursement made by plaintiff in his efforts to x-ecover the possession of the wheat fx'om the defendant. Defendant offex-ed testimony of a documentary character to show that, at the time in question, and prior thereto, and ever since, one Benson, who x-esided some eight miles- distant fi'om the land, was the owner, and was seized of a fee-simple title thereto. . The testimony was admitted against objection, but, in the view we take of the case, it will be necessary to pass upon the technical competency of the evidence, and we shall assume, for the purpose of the case, that Benson was the owner of the land prior to and dux'ing all the time in question. Benson is not a party to the action, nor does it appear that he has at any time [91] asserted a claim to the crop, or to any part of it. At the close of the testimony defendant’s counsel requested the trial court to return a'verdict in its favor, which request was denied, and this ruling is assigned as error in this court. Error is also assigned upon the following instruction, given to the jury: “Now, I instruct you that, because the title to this land was in Mr. Benson, it does not necessarily follow that he owned the crop, because the owner of the land might have rented it. There is no testimony upon the point as to the right Mr. Lee had to the possession of the land, but you have heard the testimony as to who sowed the crop, and who threshed it, and you will determine who owned the crop — Mr. Lee or Mr. Benson. If Mr. Lee owned the crop, then the lien of the mortgage attached, and the plaintiff had a right to the possession of the wheat.” The verdict and judgment were for the plaintiff.
The defendant’s counsel present the principal question to be determined in the following language, which we quote from their brief: “It will be perceived that but a single question is presented for decision upon this appeal, viz.: was the mortgagor’s possession of the land, and the crop produced thereon by his labor, sufficient evidence of his title to such crop, in the face of the proof that the land at all times belonged to another?” Counsel .for defendant contend that Benson’s ownership of the land carried with it, as an incident, the ownership of the crop raised upon the land; and, secondly, that in conversion the burden is upon the plaintiff to show ownership and the right of possession, and that to defeat the recovery the defendant will be permitted to show title in a stranger. To show that the owner of the land is entitled to the products thereof, counsel cite § 3316 of the Revised Codes, which reads: “The owner of a thing owns ajso all its products and accessions.” The principles of law contended for by counsel as above stated may be conceded, without, as we think, accepting the conclusions for which counsel are contending. It is an essential rule of the common law, and recognized as such in the provision of the Code above cited, that the [92] ownership of realty carries with it, as an incident thereto, the prima facie presumption of the ownership of both the natural products of the land, such as grass and trees, and the emblements, or annually sown crops. This rule is elementary. Nevertheless, it is quite clear that such presumptions are not conclusive. They may be overcome by competent evidence, in a given case, that the natural products or the annual crops do in fact belong to another than the owner. If this were not the law, then a tenant for years or at will or at sufferance, or a mere licensee, would not be permitted to prove his title to a crop or any part of it. We do not understand that counsel take such an extreme position. Their contention seems to be that, in the case under consideration, the evidence of Lee’s ownership of the crop, which was not objected to, is not sufficiently cogent to overcome the legal presumption that the owner of the fee owned the crops. The real question, therefore,' is whether the testimony offered by the plaintiff, and admitted without objection, constituted any legal evidence tending to establish Lee’s ownership of the crop. Upon this point we .are entirely clear. The evidence of the plaintiff tends strongly to show that, when Lee made the note and mortgage, and delivered them to the plaintiff, he was the owner of the crop. The note secured by the mortgage was given to Lee for-the seed grain from which the crop was grown upon the land described in the mortgage, and upon which Lee then resided with his family. The work of seeding, harvesting, threshing, and marketing the grain was done either by Lee personally, or by his procurement, and.at his expense. As we have seen, a son of Lee testified that his father was “in possession” of the land in the spring and summer of 1894, and raised wheat on it. He also said, “My father worked the land.” And it appears that, while the owner of the land resided in its vicinity, there is no evidence that he ever objected to Lee’s occupancy of the land, or ever has at any time made claim to the crop, or any part of it. We are aware that all of these facts might exist without absolutely proving Lee’s ownership of the crop. It is possible that all that Lee [93] did in and about the crop might have been done as an employe of Benson. But we are dealing with evidence, and the question presented is whether such evidence has any reasonable tendency to show ownership in Lee. We think it does, and that the jury drew the proper inference of fact from the evidence. Certainly, there can be no presumption, under the evidence, that Lee was a trespasser or a wrongdoer. An act which may be lawful is not presumed to be unlawful. The presumption is exactly the other way. Lewis v. Disher, 32 Wis. 506; Best, Ev. § § 346, 349; Gilpin v. Mining Co. (Idaho) 23 Pac. Rep. 547. The burden, was on defendant to show that the possession of Lee was not lawful. In the absence of any evidence tending to show that Lee committed a trespass upon the land, we are not called upon to consider whether a trespasser becomes the owner of an annual crop raised by him while a trespasser.
The note matured in November, 1894. The grain was delivered to defendant’s elevator by the mortgagor in September of the same year. Upon these facts, counsel make the point that, when the conversion took place, the defendant did not have either actual possession or the right thereto, and hence that the action will not lie, under an established rule of law applicable to cases of conversion; citing Parker v. Bank, 3 N. D. Rep. 87, 54 N. W. Rep. 313, which announces the familiar general doctrine contended for. But we think the rule does not apply, or, rather, that it cannot be invoked by defendant to defeat this action. A stipulation is contained in the mortgage whereby the mortgagee is empowered to take possession of the grain at once, in the event of a sale or other disposition of the grain being made. The condition upon which this right came into existence happened, and eo instanti the mortgagee’s right to take possession became operative. The defendant bought the grain with constructive notice of the mortgage, and becomes chargeable with notice of the stipulation to which we have referred. True, defendant acquired title as against the mortgagor (see Sanford v. Elevator Co., 2 N. D. Rep. 6, 48 N. W. Rep. 434), but took such title with the burden of the mortgage. [94] The mortgagee lost no rights under his mortgage by reason of the sale. The sale entitled the mortgagee to demand and sue for the possession, if the property could be had, and where, as in this case, the property had been converted, the holder could sue for its value. The sale gave plaintiff the right to the immediate possession of the property for purposes of foreclosure. Having this, and failing to secure the actual possession, plaintiff is entitled to sue for its value.
(69 N. W. Rep. 44.)
Finding no error in the record, we shall affirm the order and judgment appealed from.
All concur.