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and by it converted to its own use, then respondent was 421 entitled to recover the value of the wheat to the amount of Larson's indebtedness to it, not exceeding the amount of the note. Therefore, it is quite clear that it was the intention of the trial court to remove from the jury all consideration of the seed grain note. In this the court was in error. Respondent relies on the case of Kelly v. Seely, 27 Minn. 385, 7 N. W. 821, for the rule that the seed grain note in question was void for the reason that the grain was not delivered before or at the time of the execution of the note. In that case a seed grain note was executed for $250 in payment of two hundred and fifty bushels of seed wheat, and it appeared from the evidence that only one hundred and fifty bushels were delivered at the time of the execution of the note. The other one hundred bushels were not furnished at all by the payee, but sixty bushels were furnished by a third person at a price less than stated in the body of the note. The 1894 statute was modified by Revised Laws of 1905, section 3479: "To secure a loan or purchase of seed grain, the person receiving the same shall execute to the vendor or lender a note or contract containing a statement of the amount and kind of seed, and the terms of the agreement relative thereto. Upon filing the same or a copy thereof, as hereinafter provided, said vendor or lender shall have a lien on the crop grown therefrom." The former statute (Gen. Stats. 1894, sec. 4155) stated: "The party may at the time of receiving such seed, give a note," etc. The transaction under consideration occurred before the law was modified, and hence the Revised Laws have no application, except to indicate the undoubted tendency in the legislative mind to relax from the strict construction applied in Kelly v. Seely, 27 Minn. 385, 7 N. W. 821. The reason given for this rule was: "The purpose of the statute being to give the person furnishing the seed lien upon the crop grown therefrom, as against the creditors of the owner of the crop and persons purchasing of him, it may fairly be conjectured that the legislature intended to prevent the privilege thus accorded to the parties to the note or contract from being used as a cover for fraud. They therefore required that the note or contract should be founded upon an actual delivery of seed, and not upon a promise to deliver it; in other words, that it should be founded upon actual value received."

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422 In Wallace v. Palmer, 36 Minn. 126, 30 N. W. 445, the seed grain note was held invalid, for the reason that the grain which it purported to secure was not sown upon the premises until the ensuing year, and Kelly v. Seely, 27 Minn. 385, 7 N. W. 821, was cited as authority. There was certainly no occasion to refer to the doctrine of the former case for authority to sustain the latter. In Nash v. Brewster, 39 Minn. 530, 41 N. W. 105, 2 L. R. A. 409, the wheat for which the seed grain note was given was in possession of the vendor at the time of executing the note, but had not been set apart from other wheat, and the claim was made that the seed was not furnished for that reason. The court referred to Kelly v. Seely, 27 Minn. 385, 7 N. W. 821, but held that title passed as between the parties, no question being raised as to their good faith. In Warder-Bushnell & Glessner Co. v. Minnesota & Dakota Elev. Co., 44 Minn. 390, 46 N. W. 773, after referring to the preceding case, the court said: "But, by requiring that the grain must be furnished by the one and received by the other party to the note or contract, it should not be understood that he who furnishes must in every instance have actual, visible possession of the grain, or that he must carefully measure it out and make a manual delivery thereof to the purchaser or borrower."

From these cases it will be noticed that the court gradually became impressed with the fact that the rule announced in Kelly v. Seely, 27 Minn. 385, 7 N. W. 821, was too strict for universal application, and that in such transactions it was not practical in all cases to require that the wheat be delivered before, or contemporaneous with, the execution of the note and delivery of the wheat. It will be further noticed that in the two last cases referred to the court recognizes the principle that as between the parties the title will be considered to pass constructively upon the execution of the note, although the transaction was not completed, and the title finally passed until delivery of the grain. We therefore hold that the execution of the note on the 23d of March, pursuant to a contract by which the bank was to furnish Larson one hundred and five bushels of seed wheat, and the delivery of the same to him shortly thereafter, constituted one transaction, valid as between the parties to it, and upon delivery of the wheat title in the bank became complete, and, in the absence of fraud, respondent cannot question its validity.

3. Appellant presents as newly discovered evidence the following statement of facts which he claims could not with reasonable diligence 423 have been discovered at the time of the trial: A payment of $17 was indorsed upon the back of the $300 note, which respondent introduced as evidence of his debt. The fact of this indorsement led to the inquiry by appellant's counsel as to its meaning, and it was disclosed there had been a previous foreclosure of a real estate mortgage which had been given to secure the same notes. Appellant now claims as a ground for a new trial that at such real estate foreclosure proceedings the premises were sold in one tract, and upon default of payment of the first note, and be-fore the second note was due, the proceeds, under the provisions of section 4465 of Revised Laws of 1905, should have been used in payment of the first note, and for that reason the note in question was paid and satisfied. We are clearly of opinion that the point is not well taken, for the reason that the statute mentioned is merely for the benefit of the mortgagor and the mortgagee, and the irregularity, if any, in applying the proceeds in payment of the second rather than the first note did not in any way invalidate the foreclosure proceedings. In any event a debt remained to the extent of $324, and it does not concern appellant that the second rather than the first note was canceled.

A new trial is granted, unless, within twenty days from notice of the filing of the remittitur in the trial court, respondent serves notice of his intention to accept a modification of the verdict by deducting therefrom the amount paid by appellant to cancel the seed grain note, with interest.

The Mortgagor in a Recorded Mortgage of a growing crop, if left in possession after it is harvested, possesses a beneficial interest in the property until foreclosure, and may pass a good title to one who purchases in good faith in open market without actual notice of the mortgage: Gillilan v. Kendall, 26 Neb. 82, 18 Am. St. Rep. 766.


[101 Minn. 425, 112 N. W. 532.]

MUNICIPAL CORPORATIONS-Ordinance Relating to Lumber-yards and Woodyards-Uncertainty.-An ordinance relating to lumber-yards and woodyards and prohibiting the location and operation of a woodyard, "within one hundred and fifty feet of any inhabited portion of any residence district, without first securing the consent and permission of the common council so to do," is void for uncertainty and indefiniteness. (p. 640.)

Manahan & Cannon, for the appellants.

J. C. Michael and M. Doran, Jr., for the respondent.

426 LEWIS, J. Among the charter powers conferred upon the common council of the city of St. Paul is the following: "To regulate the place and manner of weighing and selling hay, the measurement and selling of firewood, coal, and lime, and to appoint suitable persons to conduct and superintend the same.'

Under this grant of power the council enacted the following ordinance:

"An Ordinance Relating to Lumber-yards and Woodyards. "The common council of the city of St. Paul do ordain as follows:

"Section 1. That hereafter no person, company or corporation shall establish, maintain and conduct any lumberyard or woodyard within one hundred fifty feet of any inhabited portion of any residence district, without first securing the consent and permission of the common council so to do."

Section 2 declared a violation of the ordinance a misdemeanor, and provided a fine not to exceed one hundred dollars for each offense.

The complaint charged that in violation of the terms of the ordinance appellants maintained a woodyard in block 20 of Moss' Outlots to the city of St. Paul, without first securing the consent and permission of the common council, block No. 20 being then and there located within the residence district of the city of St. Paul, and such woodyard being then and there less than one hundred and fifty feet from the dwelling-house commonly known and designated as No. 657 Selby avenue. The complaint was demurred to upon the ground that it did not state facts sufficient to constitute a public offense. Demurrer overruled, and the cause went to

trial. Appellants were convicted, and it was adjudged that they pay a fine of ten dollars, and on default be imprisoned in the workhouse of the city of St. Paul until the fine should be paid, not exceeding the term of ten days each. Appeal was taken to this court from the order overruling the demurrer, and also from the judgment entered in the court below.

Although conducting a woodyard is recognized as a perfectly legitimate business, yet, like other kinds of occupations in themselves lawful, 427 it may become objectionable by reason of the manner and place of conducting the same. It is quite evident that woodyards, if permitted to be operated in all parts of the city without restriction, might become public nuisances, and so come within the class of occupations which may, in the wisdom of the legislature, be regulated under the police power, and with that in view it is quite as important to prevent their location within certain districts as it is to abate them after becoming established. If the measures adopted in this ordinance have the tendency to regulate and prevent such business from becoming a nuisance, the courts will not assume to determine whether such regulation is wise, or the best that might have been adopted: State v. Corbett, 57 Minn. 345, 59 N. W. 317, 24 L. R. A. 498.

According to the facts in this case, appellants, without applying for license from the city council, located and operated a woodyard on block 20, bounded on the south by Selby avenue, east by Dale street, north by Dayton avenue, and on the west by St. Albans street. On the south half of the block, and fronting on Selby avenue, are fourteen business places. and one residence, and there are five or six residences on the north side of the block fronting on Dayton avenue. At the trial the state proceeded upon the theory that the inhabited portion of a residence district within the meaning of the ordinance should be determined by taking the woodyard as the center and strike a circle with a radius of one hundred and fifty feet. If a majority of the houses within the circle. are residences, then the woodyard is within one hundred fifty feet of the inhabited portion of a residence district. According to the evidence, the one hundred and fifty feet would reach. across Selby avenue and take in a considerable number of residences on that side, and also one or two on the opposite side of Dale street and a portion of those fronting on Dayton avenue. If, however, block 20 is considered a district by itself, then the proportion was sixteen business places to

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