Page:North Dakota Reports (vol. 3).pdf/452



Lien for Threshing Grain—Notice—Action for Conversion—Evidence.

When a party claiming to have a thresher’s lien under Ch. 88, Laws 1889, takes possession of the grain, and sells the same, and an action is brought against him by the owner of the grain for converting the same, it is incumbent upon the lien claimant to show at the trial not only that he filed a verified account in writing embodying, among other things, a description of the land upon which the grain was grown, but he must further prove that, as a matter of fact, the grain upon which the lien is claimed was grown upon the land described in the writing on file. Accordingly, held, where in such action the defendant (lien claimant) rested his defense without offering any testimony tending to show where the grain in question was grown, and the plaintiff testified that no grain was grown in the year in question upon the land described in the statement filed with the register of deeds, it was error in the trial court to deny plaintiff’s motion to strike out all evidence in the case relating to the lien.

Appeal from District Court, Stutsman County; Rose, J.

Action for conversion by Owen Martin against William R. Hawthorn and others. Defendants had judgment for costs, and plaintiff appeals.

Reversed.

S. L. Glaspell, for appellant.

The defendants failed to make a good defense, in that they failed to show by evidence where the grain was grown. Lavin v. Bradley, 1 N. D. 291, (47 N. W. Rep. 384;) Parker v. First Nat'l Bank, 3 N. D. 87, (54 N. W. Rep. 313.)

Fredrus Baldwin, for respondents.

Argued that the lien statement described the land and when in evidence supplied the necessary proof to sustain the verdict.

, J. This action is brought to recover the value of a quantity of wheat owned by the plaintiff, which the defendants seized and sold in attempting to foreclose an alleged thresher's lien in favor of the defendant Hawthorn. The only question presented upon the record is whether or not the alleged lien was