32 Mo. App. 419 | Mo. Ct. App. | 1888
— The plaintiff, as .administrator of the estate of J. A. Elliott, deceased, brought this action of replevin, in one of the justice’s courts of Cooper county, for possession of some eighty barrels of corn. Plaintiff recovered a judgment in the justice’s court, from which the defendant appealed to the circuit court of Cooper county, where the cause was tried again before the court, a jury being waived by the parties, resulting in a judgment for plaintiff from which the defendant has appealed to this court.
The facts established by the evidence are substantially as follows : On October 17, 1882, J. A. Elliott executed and delivered his deed of trust, of that date, to
The contention in this suit is over the ownership of two-fifths of the corn raised by defendant on the land during the summer of 1887, the plaintiff claiming it as rent due to him under his contract with defendant, and the defendant claiming that by the sale of the land which he had rented, under the trust deed, the lease between him and plaintiff was extinguished, that the corn growing on the land at date of sale passed with the land and that he, being the purchaser at such sale, became the owper of it by right of his purchase.
Both plaintiff and defendant introduced evidence concerning the condition of the corn on the third day of September, 1887, the day the land was sold under the deed of trust, the plaintiff aiming thereby to show that
The plaintiff introduced some statements made by defendant, tending to show that defendant recognized the right of plaintiff to a portion of the corn, after September 3, 1887. Upon the other hand the defendant testified that he had been informed by Wooldridge before the sale of the land, that the purchaser at the sale under the deed of trust would get the corn, that he expected to get the crop when he purchased, and the evidence of both parties showed that in the month of November, when defendant was gathering the corn, the plaintiff was at his place, and that defendant asserting his claim to the corn, they wént together to Boonville to consult with counsel as to the matter. As a result of this inquiry into their respective rights in the premises this suit was instituted.
The plaintiff asked, and against the objection of defendant, the court gave the following declarations of law:
“1. The court declares the law to be, that by the sale of the land, on which the corn in controversy was growing, under a deed of trust, and the purchase thereof by the defendant, did not give the defendant any right to the corn, but the same being personal property remained the property of the plaintiff.
“2. If the court, sitting as a jury, believes that at the time of the sale of the land under the deed of trust, and the purchase of the same by the defendant, the corn in controversy was standing thereon, and had ceased to draw nourishment from the soil, then said corn was personal property and did not pass with the land to the defendant.
“3. If the court, sitting as a jury in this case, shall find, from the evidence, that the defendant promised and agreed to deliver to the plaintiff two-fifths of the corn raised on said land, rented by plaintiff to
“ 1. The court declares that under the evidence in this cause, the finding must be for defendant.
“2. If the court finds from the evidence, that the corn in controversy was grown by the defendant on land rented by defendant from J. A. Elliott, in his lifetime, and that said land had been, prior to said renting, conveyed by said Elliott to one R. W. Whitlow, as trustee, to secure a note given by said Elliott to one Wooldridge, and if the court further finds that said land was, by said trustee, sold on September 3, 1887, and that defendant became the purchaser thereof, and the court further finds that at the time of said sale, said corn was not matured but was still drawing sustenance from the soil, then the finding must be for defendant.
“3. If the court, believes from the evidence, that the corn in controversy was grown by the defendant on land rented by defendant from J. A. Elliott, and if the court further finds that he was to pay as rental, two-fifths of said corn so grown, and if the court further finds that said Elliott had, prior to said letting, conveyed said land to one R. W. Whitlow, as trustee, to secure the payment of a certain note therein described, and that said Whitlow did, on September 3,1887, as such trustee, sell said land, and that defendant became the purchaser thereof, then the finding must be for defendant.”
These instructions present the theory adopted by the court at the trial.
We do not deem it necessary to rest a decision upon this point. While we might readily conclude that the weight of evidence established the fact that the corn was then growing and not matured, this court will not undertake to weigh the evidence and say that the finding below was against its preponderance. If there is any evidence tending to prove an issue, the finding must be left to the court trying the case, or the jury. Baum v. Fryrear, 85 Mo. 151. And while it is true that among those matters whereof courts will take judicial notice is that certain crops mature at certain seasons, courts will not notice the precise day a given crop reaches its maturity, especially when it appears that the time of maturity varies. Dixon v. Niccolls, 39 Ill. 372. If we believed that the rights of the parties hinged upon the question whether the corn was matured on the third day of September, 1887, then we should feel inclined to hold that the defendant was entitled to the second instruction asked by him. It certainly presented his theory and was made applicable by the evidence he introduced upon that point.
To consider the rights of these parties to the corn in question, it becomes necessary to ascertain the relation they bore to each other after September 3, 1887, and when this suit was instituted.
The sale of the land by Whitlow, under the deed of trust, extinguished the tenancy theretofore existing between plaintiff and the defendant. Barclay v. Pickles, 38 Mo. 143. And the defendant being the purchaser of the lessor’s reversion at the trustee’s sale acquired all of the interest of his lessor, and from and after the receipt of his deed from Whitlow, being in possession of the land, held the same as owner by right
Yiewed in this light, what were the respective rights of the parties after the' sale of the land on September 3 % Whether the corn was ripe and had ceased to draw nourishment from the soil, is immaterial. It will be discovered that most, if not all, of the cases where it is held that the ownership of grain should be determined by its condition and not by the fact that it was or was not severed from the ground, are cases between landlord and tenant, or the assignee of a landlord and a tenant, who was in possession before the assignment. Some authorities seem to draw a distinction, in this particular, in favor of the tenant. Thus, Washburne in his work on Real Property (vol. 1, sec. 5), expresses it: “ Growing crops planted by the owner of the soil constitute a part of the realty, but if planted by a tenant, who holds under the owner of the soil, and the same are fit for harvesting, or by one whose tenancy is for an uncertain period of time, annual crops are regarded as personal property, liable to become part of the realty if the tenant voluntarily abandons or forfeits possession of the premises. Growing crops standing upon the soil when the latter is conveyed pass as part of the realty, if planted by the grantor.” In the case of Hecht v. Dettiman, 56 Iowa, 679, the same distinction is drawn. Other authorities ignore this distinction, and hold that against both mortgageor and his tenant under a lease made subsequent to the mortgage, the growing crops pass under a foreclosure sale with the land to the purchaser; that such crops are covered by the mortgage
But aside from this, it is difficult to see what right plaintiff has to the corn in question. It is shown by the evidence that, under the defendant’s contract with Elliott as well as with plaintiff, the rent corn was to be gathered by defendant in the fall when he gathered corn, and cribbed on the land. It is not claimed that this rent was due or had accrued on the third of September, when-the land was sold. The plaintiff, under the contract with defendant, could not have demanded his rent on that day. Under this state of affairs we think there can be no question that the rent to accrue or fall due in the future followed the reversion as an incident to it, and in this instance, the defendant, by his purchase from Whitlow, becoming owner of the reversion, also became owner of the unaccrued rent.
Taylor on Landlord and Tenant, at section 447, says: “ Rent in arrear is a mere chose in action, and not assignable so as to give an action in the ñamé of the assignee, but if not-severed, rent to accrue follows the reversion as an incident into the hands of the assignee, even to a purchaser at sheriff ’ s sale.’ ’ The case of Page v. Lashley, 15 Ind. 152, is similar to the one at bar in some particulars. There the land was conveyed with full covenants, on the third day of September, but was at the time in possession of the grantor’s tenant, who held under a lease which did not expire until March 1, next ensuing. The rent for the year was an entire sum of one hundred and twenty dollars. The grantor after-wards collected the rent of the tenant, and when he sued his grantee, the assignee of the reversion, for the purchase price of the land, it was held that the grantee was entitled to all the rent for the year as a set-off in the suit against him. In Vaughn v. Lock, 27 Mo. 290, Napton, J., said: “At common law as rent follows the reversion, or ownership of the land, no apportionment would be made, but the monthly, quarterly or annual rent would follow the land and belong to the
This being the rule of law governing such cases, it is evident that the sale of the land wider the deed of trust not only severed the relation of landlord and tenant, which up to that time was existing between plaintiff and defendant, but as effectually conveyed the reversion, with the rent to accrue incident to it, to the defendant as it would have done had the purchaser been a stranger to the lease.
We find nothing in what was said or done by either of the parties after September 3 which, in our opinion, affected the rights of the parties, as settled by the sale. It is true it appears that defendant was not quite certain of his ownership of the corn. This is by no means surprising. When we find learned counsel differing so widely as to the ownership of it, and contending so ably in support of diverse opinions, it would be but just to grant to the parties a little latitude in this regard. The evidence does not show a delivery of the corn to plaintiff. The possession of the farm and the old house mentioned in the evidence, by defendant, after the sale and consequent extinguishment of the tenancy, was no longer the possession of plaintiff (his former landlord).
For the reasons herein given we think the court erred in giving the first and third declarations of law asked by plaintiff and in refusing the first and third asked by the defendant. Its judgment is, therefore, reversed and the cause remanded for further proceedings in accordance with this opinion.
