First State Bank v. Swenson

199 N.W. 185, 51 N.D. 122, 1924 N.D. LEXIS 149

• Court: North Dakota Supreme Court
• Decided: June 4, 1924
• Status: Published

Opinion

Nuessle, J.

This appeal is from a judgment of the district court of Divide county. The case is here for trial de novo. The action is one for the foreclosure of a real estate mortgage. None of the defendants answered excepting the county of Divide, which set up and demanded affirmative relief on account of certain seed and feed liens on the real estate involved. Judgment was entered for foreclosure of the mortgage as prayed, but the county’s lien claims were adjudged to be prior and superior to the lien of the mortgage. The appeal is from the whole of the judgment, and appellant demands a trial de novo.

It appears that the mortgage, which is sought to be foreclosed, was executed on the 24th day of May, 1919, and recorded on May 29th, 1919. There is no question as to its validity nor as to the amount due thereon. The respondent, Divide county, claims two liens, one for seed and feed furnished under the provisions of chapter 10, Special Session Laws of 1918, and the other for seed and feed furnished under the provisions of chapter 177, Laws of 1919. It is undisputed that seed and feed were furnished by the respondent county to the defendant Swenson, the owner of the real estate involved, in the years 1918 and 1919. Swenson made and filed seed and feed applications and executed the contracts as required by the statutes, the county officers duly examined and approved the same, and seed and feed were furnished thereunder. The contracts were filed as contemplated by the statutes, but were not recorded. The county makes no claim on account of a lien by reason of entering the indebtedness upon the tax lists as provided by § 9 of the 1918 Act. So the primary questions are as to whether, under §§ 10 and 2 of the respective acts, the contracts having been filed but not recorded, the county may sustain its lien claims on the real estate for which the seed and feed were furnished. Other questions are raised on the record, but in view of our determination of the primary questions as above stated, they require no consideration.

Section 10 (being an amendment of § 3842, Oomp. Laws 1913) of 1918 provides:

“Under the filing-of the contracts provided for in § 3840, the county shall acquire a just and valid lien upon the crops of grain and feed raised each year by the person receiving seed grain and feed to the amount of the sum then due to the county upon said contract, which shall as to the crops covered thereby have priority over all other liens and incumbrances thereon, except threshers and labor liens.

“The county shall in addition have a lien, if the owner of the real estate has signed the application and note, upon all real estate described in the application upon which said grain is to be sown, which shall have priority over all encumbrances except those existing at the time this act goes into effect. And the filing and recording of said contract shall be held and considered to be full and sufficient notice to all parties of the existence and extent of said lien upon said crops of grain and feed raised, and upon said land, which shall continue in force until the amount covered by said contract shall be fully paid.”

And § 2 (a further amendment of § 3842, Comp. Laws 19T3 as amended) of the 1919 Act provides:

“The comity auditor shall cause certified copies of such contracts to be filed and recorded in the office of the register of deeds of said county and thereupon deliver the originals to the county treasurer. Immediately upon filing and recording certified copies of said contract, the county shall acquire a just and valid lien upon the crops of grain and feed raised each year by the person receiving seed grain and feed to the amount of the sum then due to the county upon said contract, which shall as to the crops covered thereby have priority over all other liens and incumbrances thereon, except threshers and labor liens.

“The county shall in addition have a lien from the date of record, if the owner of the real estate has signed the application and note, upon all real estate described in the application upon which said grain is to be sown, which shall have priority over all incumbrances thereafter recorded. And the filing and recording of said contract shall be held and considered to be full and sufficient notice to all parties of the existence and extent of said lien upon said crops of grain and feed raised, and upon said land, which shall continue in force until the amount covered by said contract shall be fully paid.”

Section 2 of the 1919 Act, supra, plainly indicates how and when the lien contemplated by the act is to be perfected and attaches. The second paragraph of this section expressly provides that the ■ county shall have a lien from the date of record of the contract, which shall have priority as against incumbrances thereafter recorded. The act contains no other provision relative to a lien upon real estate, excepting in the second paragraph of § 1 thereof (being an amendment to § 3481, Comp. Laws 1913, as amended) it is provided that “if the applicant is a renter, the owner of the land shall also sign the contract with him, except where exception is made by the order of the board of county commissioners, and where the owner signs such contract, the county shall have in addition a lien upon all the real estate of said owner upon which said seed and grain was sown.” This latter provision was plainly enacted to enable the county by taking the proper steps to perfect a lien against real estate farmed by a renter. It could have no other purpose and must be considered in connection with § 2 of the Act, above .referred to. That is, the lien is perfected in the same manner, i. e., by recording the contract, whether the seed and feed are furnished to the owner of the land himself, or to the tenant with the own er’s assent thereto. In the instant ease, there is no question as to the validity of the mortgage sought to be foreclosed. On the other hand, it is conceded that the seed grain contract with Swenson on which the respondent’s lien claim is grounded has never been recorded. We, therefore, have no hesitancy in holding that as against this mortgage the county has no lien on account of seed and feed furnished to Swenson for the year 1919.

Whether the county has a valid lien for seed and grain furnished for the year 1918 presents a more difficult question. The respondent county contends that it has a lien under § 10 of the 1918 Act, supra. It bases this contention upon the second paragraph of the section, which provides:

“The county shall in addition have a lien, if the owner of the real estate has signed the application and note, upon all real estate described in the application upon which said grain is to be sown, which shall have priority over all encumbrances except those existing at the time this .act goes into effect. And the filing and recording of said contract shall be held and considered to be full and sufficient notice to all parties of the existence and extent of said lien upon said crops of grain and feed, raised, and upon said land, which shall continue in force until the amount covered by said contract shall be fully paid.” The argument is that there can be no doubt but that under the first paragraph of § 10 upon the filing of the contract, the county had a lien upon the crops grown from the seed furnished; that nowhere in the Act is there provision that the contract shall be recorded; that the second paragraph of said § 10 by providing, “The county shall in addition have a lien” upon all the real estate, necessarily refers back to the word “filing” in the first paragraph, and that the filing and not the recording of the contract results in the lien. We think, however, that the reference back is to the whole of the first paragraph and not to the word “filing,” and that the intention was to insure a lien on the real'estate as well as on the crops, to be perfected as elsewhere provided. It must be noted that the succeeding sentence in the second paragraph provides that the filing and recording of the contract shall be notice of the lien. It seems to us that this second paragraph must be taken as a whole, and.con-sidered in this way it becomes evident that the statute contemplated. tbat tbe contract must be recorded as well as filed; tbat tbe filing perfected the lien as against the crops; and that recording was to give notice that as against the real estate a lien would be perfected. Unless this' provision be considered as a measure solely for the protection of those who might acquire subsequent interests in the' real estate, it Wáá altogether futile. For the self-same section provided that the lien on the real estate should be prior to all encumbrances except those existing at the time the Act went into effect. This section must be read in connection with Section 9 of the Act. Section 9 (being,an amendment to § 3481, Comp. Laws 1913) provided if the indebtedness for the seed and feed furnished by the county were not paid on or before the fifteenth day of October in the year in which the same was furnished, it should then be the duty of the county auditor of said county to cause the amount of said indebtedness to be entered upon the tax lists of said county then in the hands of the county treasurer as a lien against the land owned by the applicant for which said seed and feed were furnished, and the sum so entered should be a lien upon the real estate owned by said person for which said seed and feed were furnished until said indebtedness was fully paid. In the light of § 9, it seems clear that the provision for notice by recording, as contained in § 10, was intended to protect purchasers and encumbrancers during the period from the time when the contract was made and the seed: furnished until the fifteenth of October succeeding, when the county’s lien against the land should be perfected by the act of the county auditor in entering the amount of the indebtedness upon the tax list. In other words, as against the real estate, no lien was perfected until the indebtedness was entered upon the tax list by the county auditor. In' this case there is no contention that the indebtedness was so entered upon .the tax list, and that a lien exists by virtue of that fact. The claim of lien is grounded solely upon the filing of the contract. The contract was never recorded. There is no question as to the validity of the mort'gage. We must, therefore, hold upon the record that the respondent has no valid lien upon the real estate involved, for seed and feed furnished to Swenson, the owner of such real estate, during the year 1918.

The judgment of the district court must, therefore, be modified and judgment entered in favor of the appellant for the foreclosure'of its mortgage as prior and superior to the lien claims of the respondent county.

• Bronson, Ch. J., and Birdzell, Christianson, and Johnson, JJ., concur.