Page:North Dakota Reports (vol. 48).pdf/826

 “Proceedings were on for a trial of the action when the motion to dismiss was renewed.”

But the second motion was made on January 19, 1921, and the trial was on February 2, 1921, 7 years after the commencement of the action, and nearly 11 years after the cause of action accrued. If the 5-year limitation statute does not apply in this case, then it is a practical nullity.

The wheat was grown under a cropper’s lease dated November 2, 1908, acknowledged by the lessor, but not by the lessee, and recorded in the office of the register of deeds in August, 1909. The land described is 80 acres of N. W. 4 31, and 242 acres in N. W. 1/2 of 32, 153, 81. The lease was in the nature of a chattel mortgage on all the crops to secure an estimated debt of $2,500 and interest. It should have been filed and indexed as a chattel mortgage. The record was not notice to the defendant. Wheat is grown to be sold. Croppers are poor, and must sell their share promptly after threshing to pay labor, liens, expenses, and chattel mortgages. Hence the time for a lessor to look after his interest in crops is immediately after the threshing, and not after the lapse of nearly 4 years. And when an action is commenced against an elevator company to make it pay a second time for grain purchased and paid for in good faith, ‘there are good reasons against delay in the prosecution of the action. It is well known that croppers and elevator agents are of a movable class. ‘They are here this year and away next year. They are gone and not to be found. In the course of 5 or 10 years some die, some remove to parts unknown, and’ some forget about matters in which they have no interest. In such a case if the plaintiff may delay the commencement of an action for 4 years and then delay the trial for 7 years, defendant will be at his mercy, because he may then safely testify to anything to win his case. Of course the presumption is that every man is honest and truthful, but the policy of the law is not to lead men into temptation.

The plaintiff does not present an appeal to equity. At about the date of making the cropping contract he took from the cropper a chattel mortgage on his whole farming outfit, 12 horses, farm machinery, and such like, worth probably $3,000, to secure $1,754, and in October, 1909, he foreclosed the mortgage and sold all of the property to himself for $1,863, charging an attorney’s fee, $75. Was it a wonder that the cropper ran off and quit the country?

There is no occasion for considering the alleged errors. For the