Plaintiff seeks by this action to recover from the defendant elevator company damages for the alleged conversion of a quantity of wheat upon which the plaintiff claims a seed lien and four chattel mortgages. The answer of the defendant is a general denial, and also specifically denies that the plaintiff ever acquired any lien upon the grain in question, and further specifically denies that it converted the grain in question, or deprived the plaintiff thereof. The trial of the issues resulted in a verdict in favor of -the plaintiff for the sum of $272.30. A motion for a new trial having beeni denied, the defendant appeals.
The appellant assigns numerous errors based upon the rulings of the court admitting and rej eating evidence. The defendant also moved for a directed verdict on the ground that the evidence was insufficient to sustain a verdict for the plaintiff. The latter motion is based largely upon the same propositions of law involved in the alleged erroneous admission and exclusion of evidence. For that reason the consideration of the assignments based on the denial .of defendant’s motion for a directed verdict will dispose of the questions arising on -the several assignments with relation to the rulings on evidence.
Although the plaintiff, in his complaint, relies upon a seed lien and four several chattel mortgages, at the trial he offered proof *511only as to the seed, lien and two of the ■ chattel mortgages. The trial court held that the evidence was insufficient to establish the seed lien, and instructed the jury to disregard all evidence in relation to that lien, and submitted to the jury only the evidence with relation to the two chattel mortgages. The facts developed on the trial in relation to these two chattel mortgages were as follows: One Almira Olson and her husband, A. E. Olson, during the year 1902, were occupying and residing upon two quarter sections of land in Barnes county, which land was owned in fee by one Robert Anderson. The latter had on December 18, 19'01, contracted to sell the land to Almira Olson on what is commonly known as the “crop payment plan.” The contract was in writing, and provided that the vendee, Almira Olson, should .occupy the land and farm it, and deliver one-half of the crop each year to the vendor until the full purchase price, with interest, was paid. Title to the entire crop was reserved in the vendor until a division. The contract further ¡provided that it was nonassignable without the written consent of the vendor. On May 19, 1902, Almira Olson and her husband, A. E. Olson, made and delivered to one E. K. Myhre a chattel mortgage to secure a note dated on that day, payable to said Myhre, for $133.28 and interest. The chattel mortgage covered all crops to be raised during the year 1902 on the land mentioned. This note was signed by the plaintiff as a surety, and when it' matured the plaintiff was obliged to pay the balance due thereon, which then amounted to^ about $90, and the note was turned over to him by the payee. On November 15, 1901, the husband, A. E. Olson, alone, executed and delivered to the plaintiff a note for $417.07 and interest, and at the same time, to secure the same, executed a chattel mortgage upon certain personal property, including the crops to be grown during the year 1902 upon the land referred to. This note and mortgage were not signed by the wife, Almira Olson. Both mortgages were duly filed. A crop was raised by the Olsons upon the land in question during the year 1902, and in the latter part of October of that year they sold the grain to the defendant elevator company and absconded without paying the liens. Before the grain was sold, an arrangement was made between Anderson, the vendor of the land, and Mr. and Mrs. Olson, by which Anderson relinquished all right and title to the grain in consideration of the cancellation of the contract and the vacation of the premises by the Olsons. It does not appear, how*512ever, whether the grain was turned over to Mr. Olson or to Mrs. Olson. Nor is there any direct evidence tending to show that Mr. Olson had previously acquired any right to the crops on the land. The contract gave to Mrs. Olson alone the right to occupy and farm the land. Presumptively, therefore, she held whatever right to the crop was vested in the vendee by the contract; and, in the absence of any evidence to the contrary, we must presume that the relinquishment by Anderson of his claims under the contract left the entire title to the grain in Mrs. Olson. The fact that her-husband lived with her on the farm, and devoted his time and labor to raising the crop, does not overcome the presumption of ownership by the wife. Olson v. O’Connor, 9 N. D. 504, 84 N. W. 359, 81 Am. St. Rep. 595. Under these circumstances, it was error to deny defendant’s motion to withdraw from the consideration of the jury the note and mortgage executed by A. E. Olson- alone, because there was no evidence to show that he ever had any title to the crop to which his mortgage could attach.
The appellant contends that, by reason of the terms of the contract between Robert Anderson and Mrs. Olson, there never was any title in Mrs. Olson to which her mortgage could attach; citing Omlie v. Bank, 8 N. D. 570, 80 N. W. 689, and similar cases. It is undisputed in this case that, before or at the time the first load of grain was hauled to the elevator, the vendor relinquished and surrendered all his rights in the grain to the vendee, thereby vesting the vendee with complete title. The mortgage, of course, attached as soon as the title vested.
Appellant further contended that plaintiff, because he signed the note ostensibly as maker, and subsequently paid it, without any express agreement at the time of payment or -at any other time that the note and mortgage should be assigned to- him, is not subrogated thereto. With respect to this contention, it is sufficient to say that the evidence clearly shows that the plaintiff was a mere surety on the note, and, under section 4661, Rev. Codes 1899, is entitled, upon payment thereof, to be subrogated to all the rights of the creditor. It is undisputed that he paid the sum of about $90 in cash for the balance due on the note, and is clearly entitled to all the securities which the principal makers had given to secure the payment to that extent.
We think the evidence was sufficient to warrant a recovery to the extent of the amount due on the chattel mortgage signed by *513Mr. and Mrs. Olson, and hence the motion for a directed verdict was properly denied. As the error above indicated requires a new trial, it is unnecessary to discuss the numerous other assignments of error.
(101 N. W. 892.)The judgment is reversed and a new trial ordered.
All concur.