256 P. 80 | Wyo. | 1927
Charles C. Gross, plaintiff and appellant herein, brought an action in replevin against Thomas E. Robinson. A redelivery *396 bond was given and the property replevied remained in defendant's possession. From a judgment upon a directed verdict for the defendant, the plaintiff appealed. The parties will be named herein as in the court below.
Plaintiff in his second amended petition claimed to be the owner of certain personal property, namely of about two hundred acres of growing wheat, containing about three thousand bushels of the value of $3,000; six stacks of harvested wheat amounting to about four hundred bushels of the value of about $400; sixty acres of growing corn of the approximate value of $300 — all situated on Section 27, Township 13 North of Range 60 West in Laramie County, Wyoming. Plaintiff claimed the property by virtue of a certain trust deed dated May 19, 1922, which was executed by the said Thomas E. Robinson to the plaintiff, as trustee, for the benefit of creditors. In this instrument, Robinson assigned to Charles C. Gross, trustee, for the benefit of creditors, certain personal property and all his right, title and interest in and to certain real estate, including the real estate above described. The instrument contains, among other things, a provision that if said trustee should find an opportunity to sell the real estate, he should have the right to make such sale, the net proceeds to be distributed among the creditors of said Thomas E. Robinson. A number of defenses were interposed by the defendant in the case, which in brief, are stated as follows: First, that continuously since and prior to May 5, 1922, defendant has been and is now in actual and exclusive possession of the real estate above described, with the full knowledge and consent of plaintiff; that during each of the years 1922 to 1925 inclusive, defendant cultivated said land, sowed crops and brought them to a state of maturity, claiming and asserting his exclusive right to the possession of said land, as against plaintiff; that plaintiff, accordingly, is estopped from claiming the crops in question; second, that the trust *397 deed above mentioned was intended as an assignment, for the benefit of creditors, under chapter 252, W.C.S. 1920; that said trustee has failed to comply with the provisions of the statute relating to such assignments and that he, accordingly, never acquired any right or title in and to the land above mentioned; third, that an oral agreement existed between plaintiff and defendant, that plaintiff should use, occupy and cultivate the lands aforesaid until the same could be sold by the plaintiff, as trustee; fourth, that the rights of the parties herein have already been previously adjudicated in another suit.
The evidence in the case shows that plaintiff never paid the taxes on the lands above mentioned subsequent to the execution of the trust deed made to himself, but that they were always paid by the defendant. Though nobody lived on the land, since it does not seem to have contained any buildings, defendant, by himself or tenant, cultivated it during each year since the execution of the deed of trust, and put it in crops and his possession was, accordingly, visible. It is reasonably certain that plaintiff, who lived but a comparatively short distance from the land, had full knowledge of the possession of defendant, although he made some claim to the contrary. He never took actual possession of the land, and in fact, so far as the record shows, never attempted to do so. He claims, which is denied, to have told defendant in 1923 and also in 1924, to stay off the land, but he brought no action to oust defendant and judging from the letters which he caused to be sent on August 24, 1924, it would seem that all that he wanted was to get the reasonable value for the use and occupancy of the premises. These letters are as follows, written by his attorney:
"Mr. Charles C. Gross has consulted me with reference to your share of the crop, which will be harvested from different pieces of land now in the possession of certain parties who claim to hold some sort of lease or crop-sharing contract with you. As you doubtless understand, *398 all the revenues from these lands must be delivered over to the trustee, to be governed by the terms of the trust deed executed by you in 1922. I have written to the different tenants, advising them of the situation, and have instructed them to make settlement only with Mr. Gross. I hope that you will be willing to cooperate with us in this matter, for if you do not show such a willingness, it will be necessary for us to take appropriate court action, by injunction or otherwise."
And he also, on the same day, wrote to the various tenants to the following effect:
"I understand that you have some sort of lease or crop-sharing contract on Section 27, Township 13 North of Range 60 West, which said land formerly belonged to one Thomas E. Robinson and now belongs to one Charles C. Gross, trustee. Mr. Gross, who holds title to this land under a trust deed, executed in May, 1922, is having some difficulty in getting Mr. Robinson to properly account to him for the proceeds of Robinson's share of the crops. I believe that you can be of considerable assistance to him in this matter, and I also think that you will find it very much to your interest to try to cooperate with Mr. Gross. When the crop is sold, I wish that you would do all in your power to see that Robinson does not get possession of his share, and that his share is either delivered to Mr. Gross or is sold for the account of Mr. Gross. If you can help in doing this, it will be of quite an assistance to Mr. Gross and it will also be to your own advantage, for the trust deed, having been a matter of record, Mr. Gross is the owner of the land. And if he cannot succeed in securing some revenue from the land, he may find it necessary to ask the tenants to account to him for the reasonable valuefor the use and occupancy of the land."
The defendant claimed, and claims now, that under the trust deed above mentioned, plaintiff had no right whatever to the possession of the premises, but that he simply had the right to sell it. The crops of 1922, 1923 and 1924, were apparently poor, and did not bring much more than enough for defendant to pay the taxes on the land. *399 The wheat crop of 1925 was sowed in the fall of 1924; the corn crop was planted in the spring of 1925. The wheat crop, at least, was evidently excellent, and the plaintiff sought to reach it by the action of replevin herein. Part of the crop, just how much does not appear, was put in by tenants of defendant, but they have not been made parties herein. The question of non-joinder has not, however, been raised, and we shall, for the purposes of this case, consider as correct the theory of the parties that defendant alone was in the possession of the crops at the time of the levy made thereon.
1. We shall assume for the purposes of this case, that the instrument of assignment, made for the benefit of creditors, was valid. And we shall proceed to discuss the question, who, under that assumption and in view of the remaining facts of this case, had the title to the crops replevied herein. Defendant was the owner of the lands above mentioned at the time of the execution of the trust deed, and was in possession thereof. He never gave up that possession, but cultivated the land during each year, as heretofore stated. Notwithstanding the fact that he did not live on the land, he must be held to have been in the actual possession thereof by reason of cultivating it and raising crops thereon. Gross cannot be held to have had any possession thereof. Defendant believed that he had the right to hold and occupy the land until it was sold by the trustee, and that the rights of Gross were confined to the sale thereof. Defendant paid the taxes on the land each year up to the commencement of the action herein. Plaintiff never attempted to do so. In face of these facts, it must be taken as conceded in this case, we think, that defendant's possession of the land in the meantime was in good faith, in the belief that he had the right thereto, and which was, in a sense at least, adverse to the plaintiff. The effect of the letters written on August 19, 1924, by plaintiff's attorney, is not at all *400
what counsel for the plaintiff claim for them. These letters did not constitute a notice to quit, and none of them demanded the surrender of the premises. On the contrary, they indicate that plaintiff merely claimed the reasonable value for the use and occupation of the land, and impliedly, accordingly, disclaimed the right to the crops on the land, and in a sense at least recognized defendant's possession. It may be true, without deciding the point, that as a matter of fact, plaintiff was entitled to possession of the land during this time, had he chosen to assert his claim. But his mere right of possession should not alone be determinative of his title to the crops, when the possession was actually held by someone else. Churchill v. Ackerman,
"Yet if the lessee soweth the land, and the lessor after it is sown and before the corn is ripe, put him out, yet the lessee shall have the corn, and shall have free entry egress and regress to cut and carry away the corn, because he knew not at what time the lessor would enter upon him. Otherwise it is if tenant for years, which knoweth the end of his term, does sow the land and his term endeth before the corn is ripe. In this case the lessee or he in the reversion shall have the corn, because the lessee knew the certainty of his term, and when it would end."
In the same section cited from Coke, the author holds that if "a disseizor sow the ground and sever the corn, and the disseisee re-enter, he shall have the corn, because he entereth by a former title and severance or removing of the corn altereth not the case, for the regress is a re-continuation of the freehold in him in judgment of law from the beginning." The leading early case so holding is Liford's case, 11 Coke 51, 77 Eng. Reprint 1206, decided in the time of Queen Elizabeth, in which, however, it was pointed out that there was considerable difference of opinion on the subject. Some of the modern authorities appear to have adhered to the view as expressed in that case. McCaslin v. State,
"One who sows, cultivates and harvests a crop upon the land of another is entitled to the crop as against the owner of the land, whether he came into the possession of the land lawfully or not, provided he remains in possession until the crop is harvested."
In Rector v. Lewis,
"The rule applicable to crops grown and harvested upon land by a trespasser or one in unlawful possession, not under circumstances to justify exemplary damages, would seem to be that, if possession is recovered by the owner, he takes the growing crops with the land, but that crops harvested are the property of the one in unlawful possession, and the owner's remedy is to recover the rental value of his land."
And in Lynch v. Roller Mills,
"It is an elementary rule of law that the occupier of land is the owner of all crops harvested during the term of occupancy, whether the occupant be a purchaser in possession, a tenant in possession or a mere trespasser in possession holding adversely."
Whatever may be the rule as to trespassers, we have no doubt that a person in possession of land in good faith, who plants and cultivates and harvests a crop thereon, is the owner thereof. 8 R.C.L. 366; Wattenbarger v. Hall,
That leaves to be considered the crops that had not yet been harvested on the land, consisting of the growing corn and a large part of the wheat. The wheat was all mature and was being harvested at the time of the commencement of this action. Some of the courts would apparently give the matured crop the same standing as a *403
crop actually harvested. Hecht v. Dettman,
The majority of courts, however, seem to hold that one who recovers land from an adverse holder, as, for instance, a successful plaintiff in ejectment, is entitled to all the crops not yet severed from the land. 17 C.J. 381; 8 R.C.L. 366; Hartshorne v. Ingalls,
From what we have heretofore said, however, it would seem, according to the weight of authority, that even a judgment in ejectment or other ouster proceeding, does not of itself deprive the party in adverse possession — at least if in good faith — of all his rights, but that he is entitled to all the crops which he is able to harvest before actual ouster — that is to say, while he still retains possession of the land. Philips v. Keysaw, supra; Fritcher v. Kelly, supra; Aultman etc. Co. v. O'Dowd,
In view of this conclusion, it is unnecessary to decide any other questions that have been raised herein. The judgment of the District Court should accordingly be affirmed, and it is so ordered.
Affirmed.
POTTER, J., and KIMBALL, J., concur. *406