(dissenting). This is an appeal from a judgment, against defendant for the value of 296 bushels of wheat at 98 cents per bushel. This wheat he sold to the elevator company, receiving payment in a check payable to’ the order of George Doerner. The claim is that he had no title, and that by suit and judgment the company was compelled to pay another party for the same wheat, and also that the judgment against the company is conclusive that defendant had no title-to the wheat. And, contrary to the fundamental principles of law, it has been held that defendant is concluded by a judgment in the suit to which he was not a party or a. privy.
In each of said actions, the complaint and the evidence show that in November, 1910, Stoffel agreed to sell to George Doerner a quarter section of land for $4,400 in cash and crop payments. The contract is in writing and in the form quite usual in cropping contracts. It is agreed that legal title to all grain raised on the land during each year shall be in the owner of the land. As the contract regarding the title of the-grain was made to secure payments, it was in effect a chattel mortgage. It gave the landowner merely a lien on the grain, but it was not executed and filed as a chattel mortgage. It was recorded, but the record is-not noticed to subsequent purchasers. Under this contract Doerner farmed the land during the years 1911, 1912, 1918 and 1914. During the last year he raised on the land 1,415 bushels of wheat. He gave Stoffel about half of the wheat, and from the remaining half he gave-Peter Blum 296 bushels,' which he sold the company at 98 cents per bushel, receiving a check payable to the order of George Doerner. Doerner sold the elevator company the remainder of the wheat.
On February 16, 1912, Stoffel, the owner of the land, commenced an action against the company to recover the value of the wheat purchased from Doerner and from Peter Blum, and recovered a judgment -for *93■'$775.50 and costs. That action was commenced by serving a summons .and complaint on the secretary of the company, who gave an admission •of service and retained Otto Thress to appear as his attorney. Then on February 25, nine days after the service, an order was made for the ■entry of judgment. The judgment roll is in evidence, and it contains the summons, complaint, the order for judgment, and the judgment and the check given to Peter Blum in the name of George Doerner, and indorsed by George Doerner, but the judgment roll contains no answer by the company. It shows no defense, but it does show marks of collusion and a design to permit judgment in haste, and then to bring an action against Doerner and an action against Blum by the same attorney who permitted the hasty and collusive judgment against the company. It is true that, in said rush action, George Doerner and Peter Blum were subpeened and appeared as witnesses for the plaintiff, but they were given no opportunity to defend the action and there was no bona' fide defense. Pter Blum is a poor, ignorant man, who cannot speak or read English. When called as a witness, the chances are he knew nothing of the nature of the proceeding.
Regardless of the cropping contract, the court should take judicial notice of the conditions governing such contracts. The cropper is never a capitalist. He cannot live on air. He cannot produce a crop without using a part of it to finance the deal. Those who furnish seed wheat, do work to produce or thresh a crop, have a lien for the same, and they have a right to receive pay from the crop they aid in producing. Peter Blum did such work, and he had a right to his three loads of -wheat. Stoffel got his share of the wheat. He had no right to hog it ■all.
In regard to the law of the case it is this: 1. An express grant of title conveys merely a lien when it is made to secure a debt; and a lien, or contract for a lien, conveys no title to the property subject to the lien. Comp. Laws, § 6709. 2. When a party brings an action to recover on a lien, he must state the amount due on the lien to show the extent of his interest in the property. 3. When a party has a lien on lands and crops, a subsequent purchaser or lien holder may protect himself by paying and acquiring the prior liens, and in that manner the company might well have protected itself. 4. The complaint in this action against Peter Blum and the former complaint against the *94company failed to state a cause of action. Neither complaint shows-that anything is due to Stoffel on the land contract. The cash payment and the crops of three years may have paid the price of the land. Neither the complaint nor the evidence shows anything due on the contract. 5. Peter Blum 'was in nowise bound by the judgment against-the company, even if it were not a collusive judgment, and still the-trial court held that judgment binding on all parties. In a collusive-action against the company, it seems there was a jury, and in this-action the court instructed the jury thus: “The court instructs you as a matter of law that in a previous action by which a verdict of the jury determined the rights of the parties under the previous contract is binding, and that judgment adjudicating as to the rights under that contract, and under the contract Stoffel is entitled to the possession and was the owner.
“The court instructs you as a matter of law the previous judgment adjudged them to pay directly to the original owner of the grain under the contract, so that now, from the evidence, has the plaintiff established that the defendant procured grain from George Doerner raised on the quarter section described in the complaint. If so, how much and what was paid therefor? Then they are entitled from Peter Blum that amount back.” Thus the court directed a verdict against Blum,, and that was gross error.
The judgment is binding only on the parties to the action or their ■ privies, and a privy is one who stands in the shoes or seat of one from whom he derives his title. A privy to a deed or judgment takes as an-heir or by title subsequent to the deed or judgment. To say that Blum is in any way concluded or bound by judgment recovered against Doerner, subsequent to the sale and delivery of the wheat to Blum, is contrary to the first principle of law. Manifestly the judgment should be reversed and a new trial ordered.