Lead Opinion
This is an action of replevin for the recovery of a crop of wheat and rye, cut and shocked on the premises where grown. The verdict and judgment in the circuit court was for the defendants, and the plaintiff appealed to the Kansas City Court of Appeals, by which court it was transferred to this court on the ground that title to real estate was involved in the case.
This is the sеcond appeal by the plaintiff. The first from a judgment of the circuit court in favor of the defendant was reversed by the Kansas City Court of Appeals.
The facts in the case are substantiаlly as follows: The defendant, M. C. Johnson, being the owner of a farm in Saline county, on the ninth of September, 1889, leased the same to the plaintiff for a term beginning on the first day of October, 1889, and ending оn the first day of March, 1891, and he went into possession of the same under his lease in October, 1889. Afterward, on the sixth day of December, 1889, the said Johnson executed a deed of trust with power of sаle, conveying the said farm to one McPherrin, trustóe, to secure the payment of a note for $1,386 to one Thompson. Afterward, in the fall of 1890, the
The answer of the defendant, M. C. Johnson, was a general denial and a disclaimer of any interest in the property. The answer of Thornton and Drury Johnson was a general denial and claim of right to the property taken. The trial resulted in a judgment for the defendants, whiсh, on appeal taken as aforesaid to the Kansas City Court of Appeals, was reversed. The court, in its opinion treating the defendants as tenants of the mortgagor, and having no grеater right as against the plaintiff, held, that the title to the crop growing on the premises passed to the purchaser at the trustee’s sale as against the mortgagor; and treating the plaintiff аs standing in the shoes of the purchaser at such sale and having the same right to the crop as such purchaser, held, that he was entitled to the same; holding further, however, “that as the plain
The case being remanded to the circuit court, was retried on the same pleadings. The dеfendants on this trial introducing evidence tending to prove that the deed of trust was without consideration, and procured by fraud, and that defendants, Thornton and Drury Johnson, under their contract with M. C. Johnsоn, and with the consent of the plaintiff, took possession of the land on which the wheat and rye was grown in the fall of 1890; plowed the land and sowed the seed from which the crop was grown and that such possession continued for the purposes of the crop until after they had cut and shocked the grain on the premises, and the same was thereafter taken from them under the writ in this сase. Upon this ’evidence the trial court gave several instructions, two of those for the defendants in substance authorizing a verdict for the defendant if the jury found from the evidence that the deed of trust was procured by Colton from M. C. Johnson by fraud and without any consideration; and among others the following:
“Although the jury may believe from the evidence 'that the deed of trust under which Coltоn purchased, and his title to said land was valid under said sale and that he afterward rented all of said land to plaintiff Eischer, yet if they further believe from the evidence that before the salе under said deed of trust and the renting of Fischer from Colton, the defendants, Isaac Thornton and Drury Johnson, were given possession of that part of the land on which said rye' and wheat were grown аnd they sowed said rye and wheat thereon, and the same was growing thereon at the time of the sale to Colton, and that the said Isaac Thornton and*437 Drury Johnson continued to hold possessiоn of said rye and wheat, and did harvest, cut and shock the same without any demand made by Fischer to said Thornton or Drury Johnson for the possession of said crops before the same were cut and shocked, then the finding of the jury- must be for the defendants, Thornton and Drury Johnson, for said rye and wheat.’7
In Hilton v. City of St. Louis,
To this list might be added the earlier cases of Corrigan v. Morris,
The action of replevin lies only for the rеcovery of “specific personal property." R. S. 1889, sec. 7479. It is well settled that while title to real estate may be inquired into in such action for the purpose of determining the title to personal chattels, it can not be made the means of determining the title to real estate. Wells on Replevin, secs. 58, 79, et seq. A crop severed from the land is a personal chattel, аnd a proper subject of the action of replevin, and while the title to it may depend on the ownership of the land, the title of the land is not within the issues to be tried, and the
Dissenting Opinion
(dissenting). — Is this a case “involving title to real estate,” within the meaning of the qrgаnic law defining the jurisdiction of the Supreme Court? It is an ordinary action in the nature of replevin to recover specific personal property. The property is grain. The title to it depends, in one view of the case, on the validity of a deed of trust in the nature of a mortgage, conveying the land on which the grain grew. In another view of the case the property in the grain depends on the force and effect to be given to an agreement between plaintiff Fischer and defendant M. C. Johnson, under which agreement Fischer claims to have had рossession of the land and to have sowed the crop, and to have the right to reap what he sowed.
The determination of the interests of the parties in and to the .land, under the agrеements in question, will determine their respective claims to the grain raised on the land. Yet the action itself has for its subject-matter only the ownership of the grain. The
The term “real estate,” under our positive law, “shall be deemed to be co-extensive with lands, tenements and hereditaments.” R. S. 1889, sec. 6570. An interest in land.as a “cropper,” carrying with it the right to plant, cultivate and reap a crop of grain, is an interest in real property as well recognized (at this day and in this part of the world) as is an easement. The. latter has been held real estate within the meaning of the Missouri Constitution. State ex rel. St. Louis, etc., R. R. Co. v. Rombauer (1894)
Where, in аn action of replevin, the issue of title to land has been distinctly raised and decided, the final decision of that issue is conclusive on the parties to that issue in any later litigation. Branson v. Studabaker (1892)
When a judgmеnt on an appeal will determine -an existing claim of title to real estate, that title is, in my opinion, involved in the case on the appeal.
The object of the constitutional provision on this subject is to appoint the Supreme'Court as the tribunal for the final settlement of the law of real property in Missouri, in the hope thereby to secure uniformity of decision on that important branch of jurisprudence. That object should be kept in view in interpreting the meaning of the Constitution and applying its language to particular cases. To give full weight to the intention of the Constitution it seems to me that it should be held that the form in which a question of title to real estate may arise is not material where the
In my opinion title to real estate is involved in this appeal.