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was held in an early case-Cogel v. Mickow, 11 Minn. 354 (475) that the amount of property constituting the exemption could be measured by its area as well as by its cash value, and that the homestead act was constitutional.

The language of that act, viz., "Consisting of any quantity of land not exceeding eighty acres, and the dwellinghouse thereon, and its appurtenances," does not necessarily imply that the quantity of land may not consist of two or more separate descriptions, or tracts, of land, provided the same are so situated that they may be occupied and cultivated as one body of land. The words "amount of property" and "quantity of land," employed in the constitution and in the act, respectively, do not necessarily mean one parcel or compact body of land. These provisions should not be strictly construed. It may not always be possible to acquire a sufficient amount of land to meet such strict requirements. The different parcels should be so connected that they can be used as one tract: Phelps v. Northern Trust Co., 70 Minn. 546, 73 N. W. 842. It is not material whether respondents acquired a legal highway between the two parcels. The essential thing to constitute a quantity of land within the homestead law is that it shall be occupied and cultivated as one piece or parcel of land, on some part of which is located the residence. This object is accomplished when two parcels touch at the corners, provided the essential conditions. to constitute a homestead exist. In Linn County Bank v. Hopkins, 47 Kan. 580, 27 Am. St. Rep. 309, 28 Pac. 606, Kresin v. Mau, 15 Minn. 87 (116), was cited; but in the Kansas case it does not appear whether or not the two tracts were connected by a roadway and occupied and cultivated as one farm. In Clements v. Crawford County Bank, 64 Ark. 7, 62 349 Am. St. Rep. 149, 40 S. W. 132, the statute provided that the homestead, outside any city, etc., should consist of not exceeding one hundred and sixty acres of land, with improvements thereon; and the court held: "Where two parcels of land corner with each other, they are contiguous, they touch; and there can be nothing unreasonable or unjust in allowing the two pieces to be selected and claimed as a homestead, where they constitute all the land the claimant owns and do not exceed the legal area and value." In Slaughter v. Karn, 15 Ky. Law Rep. 429, 23 S. W. 791, the court of appeals held that where a debtor, owning eighty-four acres of land, exchanged twenty acres for a smaller tract on which

there was a house, and moved into it, his residence lot and the remaining sixty-four acres, connected by a passway one hundred and fifty yards long, constituted one tract within the meaning of the homestead law.


Two Parcels of Land Which Corner on each other may be selected as a homestead: Clements v. Crawford County Bank, 64 Ark. 7, 62 Am. St. Rep. 149. Compare Linn County Bank v. Hopkins, 47 Kan. 580, 27 Am. St. Rep. 309. And the mere fact that some of the buildings on a tract claimed as a homestead are separated from others by the county line does not impair the homestead right: McCracken v. Adler, 98 N. C. 400, 2 Am. St. Rep. 340. As to whether two detached tracts can be held as a homestead, see Hodges v. Winston, 95 Ala. 514, 36 Am. St. Rep. 241; Brandies v. Perry, 39 Fla. 172, 63 Am. St. Rep. 164.


[101 Minn. 417, 112 N. W. 628.]

CHATTEL MORTGAGES-Innocent Purchaser.-A purchaser of grain from the mortgagor is not protected as an innocent purchaser by the mere fact that the mortgagee allowed the mortgagor to thresh and sell the grain, when such purchaser had constructive notice by the record of the existence of such mortgage. (p. 633.)

SEED GRAIN NOTE-Second Mortgage-Priorities-Evidence. A lien attaching to a crop to be grown by virtue of a seed grain note has priority over a lien upon the same crop acquired by means of a previously executed and filed chattel mortgage, and the purchaser of such grain from the mortgagor is entitled, as against the claim of the chattel mortgagee, to pay off such seed grain note, In such case the note and evidence of its payment are admissible in evidence. (p. 634.)

MORTGAGE to Secure Seed Grain Note, Necessity for Preceding Delivery of the Grain.-A seed grain note is not void for the reason that the grain was not delivered at or before the execution of the note, if the note was made pursuant to a contract by which the payee was to furnish the seed and it was delivered to the maker shortly thereafter. (p. 636.)

MORTGAGE OF CHATTELS-Misapplication of Proceeds of Sale of Another Mortgage to Secure the Same Debt.-Where a real estate mortgage is given to secure two notes, one of which is also secured by a chattel mortgage, and the former mortgage is foreclosed and a sale made thereunder, after which the chattel mortgage is foreclosed and a sale made under it, the title of the purchaser cannot be avoided by a third person on the ground that under section 4465, Revised Laws of Minnesota, the proceeds of the sale under the real estate mortgage ought to have been first applied to the satisfaction of the note secured by the chattel mortgage. (p. 637.)

Wilson & Mercer, for the appellant.

F. W. Murphy and T. Kneeland, for the respondent.

418 LEWIS, J. Action in conversion to recover the value of about five hundred bushels of wheat raised by one Larson during the season of 1905 on eighty acres of land in Wilkin county, upon which respondent held a chattel mortgage. The answer is a general denial. The chattel mortgage was dated December 8, 1904, and given to secure a promissory note of $300, of the same date, payable October 1, 1905, and another note of $392.91, of the same date, payable October 1, 1906.

At the trial, the mortgage and the $300 promissory note were introduced in evidence. Respondent, testifying in his own behalf, stated that he resided about thirty miles from the land on which the crop was grown, and that he expected the note to be paid out of the grain on which he held the mortgage. Upon cross-examination he was asked the following questions, among others of like import:

"Q. Then it was your expectation that he would sell the crop and pay you your money on the mortgage? . . . . "Q. Was it your intention that he should dispose of the crop and then pay his mortgage to you? . . . .

"Q. You did not take it, or the mortgage securing it, and go to this farm to look after the crop on the farm, did you? . .

"Q. Did you send the note or mortgage to anybody in this county, or to anyone at all, at the time the note fell due for collection?"

Objection to these questions was made, and sustained, upon the ground that the same were not proper cross-examination and immaterial.

Appellant claims that since the note introduced in evidence matured October 1, 1905, and the grain was not attached until October 14th, it was entitled to show, upon crossexamination, that respondent knew there was no barn or granary on the mortgaged land wherein to store the grain, and that no provision had been made for taking care of it; knew there were public elevators within a few miles, where in it was customary to deposit grain when threshed; knew that the mortgagor had no other way to pay the indebtedness, except by a sale of the mortgaged crop; and knowing that, if delivered by Larson at an elevator, the wheat would become mingled with other wheat, appellant contends 419 that it fol

lows, from all of these circumstances, if established, that respondent, as mortgagee, had consented that the mortgagor thresh and deliver the grain to the elevator of appellant at Doran. In support of these propositions we are cited to Hogan v. Atlantic Elevator Co., 66 Minn. 344, 69 N. W. 1, and Partridge v. Minnesota & Dakota Elevator Co., 75 Minn. 496, 78 N. W. 85.

Even if permissible to establish this sort of a defense by cross-examination, the facts admitted and sought to be proven would not warrant the implication that the mortgagee constituted the mortgagor his agent for the purpose of disposing of the wheat, and thus relieve appellant from responsibility in receiving it from the mortgagor without inquiry as to the rights of the mortgagee. A purchaser of mortgaged grain from the mortgagor is not permitted to set up the defense that he was an innocent purchaser, simply because the mortgagee did not take proper precautions to protect himself. In the cases cited the facts are so entirely different as to have no application.

2. As a defense, appellant undertook to show that it had paid off a seed grain note of $121.25, given by Larson for one hundred and five bushels of seed grain which was sown on the land in question, and which seed produced the crop upon which respondent claimed a chattel mortgage. The seed grain note was dated March 23, 1905, and ran to the Merchants' State Bank at Breckenridge, Minnesota.

According to the testimony of the bank officers it was executed in pursuance of an agreement between Larson and the bank that they would furnish him the seed grain; that, not having the grain on hand, Larson executed the note with. the expectation, pursuant to arrangement, that the bank would cause the wheat to be delivered to him at the Doran elevator, a few miles distant. An order was issued to appellant elevator company at Doran to deliver the wheat to Larson, and in pursuance of such order the wheat was actually delivered to Larson and to his sons. The agent of the elevator company testified that the wheat was hauled away by Larson and his sons; that he afterward saw the wheat, or wheat just like it, on Larson's farm; that Larson had no other seed wheat for that season; that it was hard wheat, and that there was none other like it in the country, and it was the same kind as delivered by Larson to the elevator after threshing in the fall. During the examination of the agent it developed that

the order issued by the 420 bank to appellant for the delivery of the wheat to Larson was in writing, and the court struck out all testimony which was in conflict therewith as not being the best evidence, and refused to receive the note in evidence. It was further shown by appellant that out of the wheat delivered to it by Larson in October, 1905, appellant paid the amount of the seed grain note to the Merchants' State Bank at Breckenridge, by issuing a check of $115.15 upon the Bank of Doran to the order of Larson, which check Larson indorsed and delivered to the Breckenridge bank. Appellant offered the check in evidence for the purpose of showing the payment, but the court refused to receive it upon the ground that it had not been properly identified. Appellant also offered in evidence an assignment of the seed grain note executed by the Merchants' State Bank at Breckenridge upon receiving the amount due thereon.

The note and check were properly identified and admissible in evidence for the purpose of establishing the fact that the note was a first lien and that appellant had paid it. It is not very material whether the assignment to appellant of the note had the effect of actually transferring the title from the State Bank of Breckenridge. This action was brought against appellant for the conversion of wheat upon which respondent held a mortgage, and if the seed grain note was a first lien upon that wheat it is immaterial to him how it was paid, whether directly by appellant or by the mortgagor Larson. Being a first lien, respondent has no claim against appellant simply because it utilized enough of the wheat to extinguish the debt. "A lien arising upon a crop by virtue of a seed grain note. . . . has priority over a lien upon the same crop acquired by means of a previously executed and filed chattel mortgage": McMahan v. Lundin, 57 Minn. 84, 58 N. W. 827. And a chattel mortgage upon a crop not yet planted or sown attaches only to such interest which the mortgagor has on the crop when it comes into being: Simmons v. Anderson, 44 Minn. 487, 47 N. W. 52. The evidence was sufficient to go to the jury upon the question whether or not the seed wheat was delivered by appellant company to respondent Larson and sown on the premises. It does not appear clearly from the rulings what portions of the evidence bearing upon this question were struck out by the trial court; but the court instructed the jury that if the wheat grown on the premises during 1905 was delivered to appellant at Doran,

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