Page:North Dakota Reports (vol. 3).pdf/127

 Almon H. Parker vs. The First National Bank of Lisbon.

Opinion filed Dec, 14th, 1892.

Lien for Threshing—Notice—Description of Land.

In order to preserve a lien for threshing grain, under Ch. 88, Laws Dakota Territory, 1889, the statement which that statute directs shall be filed, must contain a description of the land whereon the grain upon which the lien is claimed was grown.

Owner and Operator of Machine.

No party is entitled to a lien, under the provisions of that chapter, unless he owns and operates the machine with which the threshing was done.

Who May Maintain Conversion.

An action for the conversion of personal property cannot be maintained unless plaintiff was in possession, or held a legal right to immediate possession of the property converted, at the time of the conversion.

Appeal from District Court, Sargent County; Lauder, J.

Action by A. H. Parker against the First National Bank of Lisbon for the conversion of a quantity of wheat. A demurrer to the complaint was overruled, and defendant appeals.

Reversed.

Goodwin & Van Pelt for appcllant.

Lockerby & Cady, for respondent.

Bartholomew, J. This is an action for conversion of certain wheat. There was a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and this appeal was brought by defendant solely upon such ruling. It will not be necessary to consume the space required to set out the complaint in full. Respondent claimed the wheat by virtue of a thesher’s lien, under Ch. 88, Laws Dakota Territory, 1889. Section 1 of that chapter reads as follows: ‘Every person or persons owning and operating a threshing machine shall have a lien, from the date of threshing, upon all grain threshed by him with such machine, for the value of the services so rendered in doing such threshing.”