Ford v. Sutherlin

2 Mont. 440

• Court: Montana Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

BlaKE, J.

G. Kronk executed and delivered to the appellant, August 12, 1811, a mortgage on certain chattels in Meagher county, described as follows : “ Being one-half undivided inter.est in and to all the oats, wheat, barley and potatoes now growing and standing in the field or ranch of George Siggs, in the Missouri Talley.” The instrument was filed for record in the office of the county recorder on the same day at six o’clock, a. M. On the following day the respondent, as the sheriff of Meagher county, levied upon and took possession of the oats, wheat and barley under a writ of attachment issued in an action commenced against Kronk and another party. Judgment was entered against Kronk and his co-defendant December 1, 1871, and the respondent, as the sheriff, sold the property and applied the proceeds in partial satisfaction of theiexecution. The appellant brings this action to recover the value of the grain that was attached and sold by the officer.

The transcript appears to show that the oats, wheat and barley had been cut before the 12th day of August, 1871, and piled up on the ranch of said Siggs. Persons were engaged in threshing the grain in the morning of this day. At the time that the officer levied upon the property, one-balf of tbe grain bad been threshed and stored in a granary on the ranch of one Perkins, and was not on the ranch of Siggs. A nonsuit was granted upon the trial on the motion of the respondent.

The appellant relies on one point to procure a reversal of this ruling. He contends that the words “ growing and standing,” which are used in the mortgage, embrace all the grain which was standing on the ranch, or in the shock, or on the natural stalk, and growing above or in the ground and cut or harvested. The only case that is cited in the brief is that of Claflin v. Carpenter, 4 Metc. 580. The appellant submits that the terms “growing and standing ” have the same effect as the clause in that decision, “ all the wood and timber cut and uncut,” relating to the interests of the parties under a mortgage.

We cannot inquire into the intention or understanding of Kronk and the appellant in executing the mortgage and examine the testimony concerning the matter. The rights of persons who are not the parties to the instrument are involved in this case, and the words “ now growing and standing ” must be understood and construed according to the approved and common usage of the language. Cod. Sts. 389. Yegetable bodies are “growing” while their bulk is being enlarged by the natural addition of matter through ducts. Trees and plants are “ standing ” when they are erect and supported by their roots. Webster’s Diet. We think that these definitions are applicable to the property described in the mortgage, which was sold by the respondent. It is evident that the oats, wheat and barley were not “growing and standing” when the sheriff levied upon them. The parties to the instrument could have protected the mortgaged property by using the comprehensive terms which appear in Claflin v. Carpenter, supra, and the argument of the appellant in defining the words “now growing and standing,” and have been mentioned. But they employed language which has received the interpretation in many cases that we have expressed, and the respondent and innocent persons would act correctly in giving it the same meaning.

The case of Goodyear v. Williston, 42 Cal. 11, resembles that at bar, although the decision depends upon the construction of the act relating to mortgages upon growing crops. This view of the words used by tbe appellant is supported by tbe following authorities : Clap v. Draper, 4 Mass. 266, “ all tbe trees and timber standing and growing on tbe close Brown v. Wellington, 106 id. 318, “ standing grass;" Delaney v. Root, 99 id. 548, “ growing annual crops Hill v. Hill, 113 id. 105, “ all tbe wood, timber and trees now standing;" Schulenberg v. Harriman, 21 Wall. 64; Davis v. McFarlane, 37 Cal. 634. Tbe distinction is recognized between trees and cereals, wbicb are “ growing and standing,” and those wbicb have been cut and severed from tbe freehold. Tbe change in tbe condition of wood and grain, caused by these acts, affects materially tbe rights of tbe parties to an agreement, mortgage, or bill of sale of tbe property. We have not found one case wbicb sustains tbe point on wbicb tbe appellant relies, and are therefore of tbe opinion that tbe mortgage given to tbe appellant by Kronk cannot be enforced in this action against the respondent.

Judgment affirmed.