Haseltine v. Ausherman

| Mo. | Oct 15, 1885

Henry, C. J.

This suit was instituted in the Greene circuit court for rent, and plaintiff filed, with his petition, an affidavit for attachment under the landlord and tenant act, alleging that Ausherman. refused to pay the rent, and was about- to remove, and was removing his property, including the crop of corn, from the leased premises, and was disposing of the same so as to hinder •and delay plaintiff in collecting his rent. The defendant filed his plea, denying the above statement in the affidavit, and on a trial of the issue on the' plea, defendant had a verdict and judgment, from which plaintiff has appealed.

Evidence was introduced by plaintiff proving that defendant had sold and removed a part of the corn from the premises, and was about to move more; that Ausherman had removed to Kansas. On cross-examination •of a witness for plaintiff, over plaintiff’s objection, he was permitted to testify that, when Ausherman went to Kansas he had wheat stacked on a place belonging to one-Powell, and also on Wade’s farm. Defendant was •.also permitted to testify that he left seventy acres' of ■wheat growing, forty acres on Wade’s place and twenty on Powell’s place,' and also that plaintiff told him he; would not claim the rent. In the admission of that testimony the court erred.' By the statute the landlord has a lien upon the crop grown on the demised premises (section 3083), and by section 3091 it is provided that the landlord may have an attachment against the tenant if the latter intends to remove, or is moving, or has within thirty days removed his property from the leased premises, or shall, in any manner, dispose of such crop, or attempt to dispose of the same, so as to endanger, hinder or delay the landlord from the collection of his rent.

It is not the sense of the statute that the tenant shall-not remove any portion of the crop, but only that he shall not remove or dispose of it so- as to endanger or hinder the 'landlord's collection of the rent. This is a question for the jury, but it is not to be determined with reference to any property the tenant may have elsewhere. The landlord’s lien is upon the entire ' crop gi’own upon the premises, and -it is this lien which the statute was-designed to protect. The court instructed the jury, “that, in determining whether the removal of said corn from the leased premises, by defendant, was such an act as to endanger, hinder or delay plaintiff from collecting his rent, the jury is at liberty to consider the manner of ■spch removal of said corn by defendant, and all his acts and statements concerning the same, and all other facts agid circumstances in evidence before them.'] Under this instruction, if the jury had been satisfied from the evidence that defendant intended to, and was about to remove all the corn from the premises, yet if they also found that he had enough property elsewhere in the county, out of which plaintiff could make his rent, they were authorized to find-a verdict for defendant. It was error to admit the testimony that plaintiff said to Ausherman he would not claim the rent. No consideration •for such promise is proved or alleged, and plaintiff was not bound by it.

The j udgment is reversed and the cause remanded;

.All concur.