95 Minn. 417 | Minn. | 1905
Action in claim and delivery to recover the possession of certain crops, in which, after trial before the court without a jury, judgment was ordered for defendants, and plaintiff appealed from an order denying his motion for a new trial.
The short facts in the case are as follows: Plaintiff owned the land on which the crops in question were raised, and one Hoff had been cultivating the same under a lease or farm contract prior to and during the year 1901. It is claimed by plaintiff that under and by virtue of the terms of this contract he was the sole owner of all the crops
One principal question of fact was presented to the court below, viz., whether the original contract between plaintiff and Hoff; by the terms of which the latter was to receive for his services in cultivating the land one-half the net proceeds of the crops raised, was subsequent to that time, and prior to the year 1901, changed and modified by the
Counsel for plaintiff presented this feature of the case on the oral argument with much earnestness, and in an evident belief of the justice of his client’s cause, but a careful examination of the evidence presented in the record does not sustain his contention. Hoff testified that prior to the year 1901 the written contract originally entered into was modified in the manner and to the extent just stated, and that he cultivated the land during that year under the modified conditions. This was flatly denied by plaintiff and his witnesses, thus presenting a square issue of fact for the trial court to determine. If the question were to be determined from the testimony of Hoff and plaintiff, we would probably be required to adopt the view of counsel for plaintiff, and hold Hoff’s testimony, standing alone, too unreliable on which to base a finding in favor of defendants. But there was other evidence presented tending to prove the modification, given by members of his family, and strong corroborative circumstances appear from the acts and conduct of plaintiff and his agent. Certain members of Hoff’s family.testified to the modification of the contract, and it appears that subsequent to the time it is claimed the modification was made the crops raised on the farm were divided, one-half being delivered to plaintiff and one-half to Hoff, and separate bins in the granary were set apart for storing the grain of each. It also appears that prior to the time the mortgage here in question was executed to defendants, plaintiff caused Hoff’s interest in the identical crops in question to be attached in an action brought against him to recover for money loaned, and two days subsequent to the execution of the mortgage procured from him a bill of sale of his interest therein, thus treating him as a joint owner of the property.
This testimony fully corroborates the testimony of Hoff to the effect that the contract was modified. Indeed, it seems difficult to reconcile the conduct of plaintiff himself with any other theory of the case. If, as now claimed, Hoff’s interest in the crops was limited exclusively to a portion of the net proceeds, no reason is apparent why the crops should have been divided, or why plaintiff should obtain
There can be no serious question of the legal right of Hoff to mortgage his interest in the crops, even before a division thereof was had by act of the parties. The parties were, within all our decisions, prior to a division, tenants in common; and the law is well settled that a' party standing in that relation to the title may mortgage his undivided interest in the common property. McNeal v. Rider, 79 Minn. 153, 81 N. W. 830; Strangeway v. Eisenman, 68 Minn. 395, 71 N. W. 617; Anderson v. Liston, 69 Minn. 82, 72 N. W. 52; Avery v. Stewart, 75 Minn. 106, 77 N. W. 560, 78 N. W. 244. In the case of Potts v. Newell, 22 Minn. 561, it appeared by the terms of a farm contract that the tenant retained title to all crops raised thereunder until a division thereof by the consent of the parties at thé threshing machine. It was held that the landlord had the right to mortgage his contingent interest before a division. The decision is in line with the general rule that one tenant in common may mortgage or assign his undivided interest in the common property. 5 Am. & Eng. Ene. (2d Ed.) 955. It does not, as argued by counsel for plaintiff, where the tenant mortgages his undivided interest, operate as the substitution of a new tenant, but only as a legal transfer of the tenant’s interest in the common property, subject to the rights of the landlord as fixed and determined by the contract of tenancy.
Bindings numbered eighteen and nineteen are assailed by plaintiff as wholly without evidence for their support. These findings are not justified by the evidence. We search the record in vain to find sup
The assignments of error challenging certain rulings of the court on the admission or exclusion of evidence on the trial have been fully considered, with the result that no reversible error is disclosed. No accounting can be had in this action, it being one in claim and delivery, involving only the legal rights of the parties. Plaintiff, having adopted this course of procedure, is in no position to claim that the cost and expense of threshing the grain, or other unsettled matters concerning the tenancy of Hoff, are not taken into account or adjusted. By his action he asserted a legal right to the property, and, having failed to establish it, must return the property to defendants, adjusting all other matters in some other action.
The order appealed from is affirmed.
START, C. J., absent, took no part