This was an action by respondent bank to recover judgment on notes aggregating $20,000 executed by defendant Arthur Naylor, and 1,381 head of sheep were attached as the property of defendant. Thereafter Lorin C. Woolley intervened and claimed title to these sheep. Naylor defaulted and respondent took judgment for the indebtedness represented by the notes. The action between the intervenor and respondent resulted in a judgment for respondent, the court holding that the sheep in question were the property of Naylor when attached, and dismissed the complaint in intervention, from which judgment this appeal is taken.
Appellant claims ownership in the attached animals by reason of an agreement made between defendant Naylor and John W. Woolley at Vernal, Utah, in October, 1908. This agreement, which was in writing but not signed by either party, provided that Woolley was to deliver 1,450 head of sheep to Naylor, by him to be shorn and dipped and in all respects cared for at his expense, except taxes were to be paid by Woolley, and was to run for a year. At the expiration of the year appellant delivered to Naylor an additional 35 head of sheep upon the same terms that Naylor had received the first allotment. This agreement was not acknowledged or recorded in Utah where made or in Idaho where the sheep were subsequently taken and no other writing was ever entered into between the parties. *Page 277
The lower court made complete findings of fact, all of which are supported by the evidence. Among other things, it found that neither John W. Woolley nor his son, Lorin C. Woolley, appellant in this case, ever had any agreement in writing with Naylor other than the one mentioned made at Vernal, Utah, in 1908; that there was never at any time a lease of said sheep in writing executed by either of the parties, but that the Woolleys permitted Naylor to keep the sheep in his possession and control from year to year; that Naylor took the sheep from Utah to Idaho and never thereafter returned to Vernal, Utah, and that there was no increase added to the sheep; that neither of the Woolleys ever paid any further attention to these sheep but permitted Naylor to handle them as if they were his own; that he branded them with his brand and from 1909, the time of his removal to Idaho, until the commencement of this action in 1920, he purchased and raised a large number of sheep, running them upon the public range during the open season and keeping them about his premises at Bancroft, Idaho, during the feeding season.
After Naylor's removal to Idaho there was never any settlement between him and the Woolleys except that he made occasional remittances to them purporting to be on account of wool taken from these sheep; the Woolleys never made any effort to identify their sheep or to place any marks or brands on them or to have any accounting regarding the increase or the wool taken from these sheep; that shortly prior to the commencement of this action Naylor requested his herders to turn over all of his sheep to John W. Woolley, but none of the sheep so turned over were any of the original sheep delivered by the Woolleys in 1908 at Vernal, Utah, or the progeny of such animals, and that the Woolleys were not the owners of the sheep attached in December, 1920, by respondent. It appears that respondent bank during all of this time from 1908 to the commencement of this action in 1920 made frequent and at times large loans to Naylor, amounting sometimes to $75,000; that Naylor obtained this money by representing that he was the owner and in control *Page 278 of all of the sheep in his possession in and about Bancroft, Idaho, and that the same were free and clear from all adverse claims or liens of any kind whatsoever; that respondent relied upon these representations and was thereby induced to make these loans, and at no time had any knowledge or information sufficient to put it upon inquiry that the Woolleys or any other person had any claim upon Naylor's sheep; that Naylor was in debt to respondent bank at the time of the commencement of this action upon the notes sued on in an amount approximating $20,000. As a conclusion from the facts found by the court it held that the Woolleys were not entitled to the possession of the sheep and were estopped from claiming any right or ownership in them.
The controlling question in this case is this: Can appellant, Lorin C. Woolley, who acquired the interests of his father, John W. Woolley, assert ownership in these sheep against respondent by virtue of the agreement made between the Woolleys and defendant Naylor at Vernal, Utah, in 1908 and 1909?
In 1907 the legislature of this state recognized the opportunity for fraud if secret leases were to be recognized and passed what is now C. S., sec. 1955, which is as follows:
"Sec. 1955. Leases to be in writing and recorded. All leases of more than 10 head of livestock must be in writing and must be acknowledged in like manner as grants of real property, and filed of record in the same county recorder's office or offices, and within the same time and manner, and for the same fee, as are chattel mortgages; and the failure to comply with the provisions of this section renders the interest of the lessor in the property subject and subsequent to the claims of creditors of the lessee, and of subsequent purchasers and incumbrancers of the property in good faith and for value."
It will be noted that the legislature has used the words "claims of creditors," not "claims of lien creditors." The language of this statute is so plain, simple and clear that under the well-settled rules of construction, to which there *Page 279 are no exceptions, there is no occasion nor is it permissible to interpolate into this statute, as the majority opinion has done, the word "lien" preceding the word "creditors." (In reSegregation of School District No. 58, 34 Idaho 223, at p. 228,200 P. 138; State v. Jutila, 34 Idaho 595, 202 P. 566.)
In Holmberg v. Jones, 7 Idaho 752, 65 P. 563, this court cited with approval Endlich upon Interpretation of Statutes, which at sec. 8 states the rule: "The court knows nothing of the intention of an act, except the words in which it is expressed, applied to the facts existing at the time."
36 Cyc., p. 1106, states the rule to be:
"The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. This intention, however, must be the intention as expressed in the statute, and where the meaning of the language used is plain, it must be given effect by the courts, or they would be assuming legislative authority."
In R. C. L., p. 972, it is said:
"And it is an invariable rule that an exception cannot be created by construction where none is necessary to effectuate the legislative intention. The power to create exceptions by construction can never be exercised where the words of the statute are free from ambiguity and its purpose plain. . . . . The courts have no dispensing power over statutes. Where statutes contain no exceptions, and it cannot be said with certainty that exceptions were contemplated by the legislature, the courts can recognize none."
The majority opinion says, "The term 'creditor' as used in C. S., sec. 1955, does not refer to a general creditor but to one who has acquired some sort of lien, by attachment or otherwise, upon the property." The legislature says, "claims of creditors," not "claims of lien creditors." The language of this statute is so plain that it leaves no room for interpretation and its purpose cannot be misunderstood. For this court to interpolate the word "lien" preceding the word "creditors" and thereby make it read "lien creditors" is a plain disregard of the legislative intent. Where *Page 280 a court interpolates into a statute a word or words that changes the obvious meaning of the statute it not only violates all well-settled rules of construction but it is plainly a refusal on the part of the court to obey the legislative mandate, and amending this statute by judicial construction is a plain usurpation of a legislative function.
In the instant case the Woolleys in 1908 and 1909 delivered to Naylor about 1,500 head of sheep at Vernal, Utah. What became of those animals or their increase is a matter of speculation. It is known, of course, that neither the sheep turned over to Naylor nor any of their increase are the same sheep that appellant received from Naylor in 1920.
In paragraph 7 of his petition appellant alleges that Naylor was not at any time the owner of said sheep and was without authority at all times to mortgage, sell or otherwise dispose of them and that at all times up to and including the fourteenth day of December, 1920, appellant was the absolute owner of said sheep together with the increase thereof. In paragraph 10 of his petition he alleges that on December 14, 1920, he personally repossessed these sheep in Bannock county, Idaho, and that he was the absolute owner as against all the world and now is. Therefore there can be no question but that appellant's claim to these sheep is that of absolute ownership, which claim of ownership is based upon the delivery of the sheep to Naylor in 1908 and 1909 at Vernal, Utah, and that this ownership continued from that time until he repossessed them at Bancroft, Idaho, in December, 1920, and the majority opinion upholds this claim. There is no question before this court of Naylor being indebted to the Woolleys by virtue of this agreement made at Vernal, Utah, or of appellant taking the sheep in question in payment of any such indebtedness.
The holding in the majority opinion that a claim of ownership based upon a secret lien made in another state, not in accordance with the laws of that state and in direct violation of the law of this state, will be sustained, invites the perpetration of the most flagrant frauds and will tend to destroy all basis for the extension of credits to those engaged *Page 281 in the livestock business in this state; it nullifies the leasing statute and restores the opportunity for dishonesty that this act was intended to prevent.
The majority opinion says, "Respondent, not being such a creditor as the statute contemplates, could not acquire any valid claim to the sheep that had previously been turned over to Woolley in part settlement of Woolley's claim under the contract between himself and Naylor." As clearly appears from appellant's pleading which we have referred to, he did not take these sheep because he was a creditor or had any claim against Naylor as a creditor, but, on the contrary, took them under a claim that the title to these sheep in the possession of Naylor during all these years was in the Woolleys.
The majority opinion says, "This construction [that the word 'creditors' as used in the statute means 'lien' creditors] was given by this court to language similar to that used in C. S., sec. 1955, in the case of Martin v. Holloway, 16 Idaho 513,102 P. 3, 25 L.R.A., N.S., 110." In that case a chattel mortgage on a stock of merchandise contained in a building on Main Street, in Boise, stipulated that the mortgagor might remain in possession, sell the stock and apply the proceeds on the mortgage indebtedness. Subsequently lay agreement of the parties the mortgagee took possession before the mortgage had become due, and the court held that the taking of possession cured the objectionable stipulation in the mortgage as against subsequent attaching creditors. In the instant case the debtor Naylor, after his removal to Bancroft, Idaho, in 1909, exercised all the rights of ownership over his flocks of sheep until December, 1920. He branded them with his brand, sold them and bought and raised others to take their place, they were assessed to him upon the public tax-rolls and he paid the taxes, marketed the wool shorn from them, and during all of this time had them in his sole and exclusive possession. Under these circumstances I cannot perceive how the rule announced in the Holloway case can be extended to support the majority opinion which holds that notwithstanding these facts the Woolleys were during all of this time vested with *Page 282 the title to an equal number of Naylor's sheep which they could assert at any time against his creditors.
The finding and holding of the lower court that appellant should be estopped from asserting title to these sheep is based upon the soundest principles of law and justice.
The. Woolleys during all of this time neglected to have their agreement with Naylor renewed and recorded as the law requires (Hare v. Young, 26 Idaho 682, 146 P. 104), and their failure and neglect to comply with the law in the matter of having their lease properly executed and recorded was such a flagrant violation of the law that they should be estopped from asserting title to these sheep.
I am authorized to say that Mr. Chief Justice McCarthy concurs with me in dissenting from the views expressed in the majority opinion.
Petition for rehearing denied.