115 Mo. App. 1 | Mo. Ct. App. | 1905
— Respondents have moved that the judgment herein be affirmed for the reason that the defendant did not except to the action of the court in overruling his motion for a new trial and in arrest of judgment. But the record shows that he did so except, con’sécjuently respondents’ motion is overruled.
The plaintiffs commenced this suit before a justice of the peace Avhere it Avas tried and appealed to the circuit court upon substantially the following statement: “Plaintiffs for their cause of action state that on the
The facts were that defendant had leased the premises upon which the stalks and grass had been grown to one H. M. Thomas for the year ending March 1, 1903; that previous to the 28th day of November, 1902, said Thomas had leased a farm in the State of Kansas for the purpose of moving there, and had disposed of most of his personal property and sold the stalks and grass in controversy to the plaintiffs. He went to the State of Kansas, but left his wife and children in Missouri to follow him later. He also left some personal property in the house and on the premises which was to be sent to him afterwards. It was the understanding between Thomas and the plaintiffs that they had the right to consume the stalks and grass on the farm; and that they were to look after and care for the farm and erect a fence around the house to protect it from livestock. Plaintiffs turned their stock upon the stalks and grass standing on the land, but within a few weeks defendant turned them out and locked the gate that led into the premises. There was little or no controversy as to the facts and it is admitted that the property in dispute was of the value of $125. The case was submitted to the court, a jury having been waived, and judgment was rendered for plaintiffs and defendant appealed.
The defendant contends: “The contract and intent of the tenant and his assignees being that the cornstalks
There can be no doubt under all these authorities but what the stalks being fructus industriales, or an artificial crop, were personal and in no sense real property, as they were mature at the time. As Thomas, the tenant, was the owner of the grass with the right to remove or consume it under his lease, it was also personal property.
The sale by Thomas to plaintiffs was not in the nature of an assignment of his lease and, therefore, void, because made without the written consent of his landlord. It is true it was contemplated that plaintiffs would have the right to consume the crops where grown upon the leased premises. But it was further shown that they were to look after and care for the property and guard the house against injury from their stock by building a fence around it. Plaintiffs were left in possession, not as tenants, but as the servants of the tenant. As long as Thomas’ lease lasted, he had the right to both stalks and grass and, in exercising his right, could, if he chose, sever the crops from the soil by having them consumed in grazing. He gave this right to plaintiffs, his servants, in payment of their wages in caring for the demised premises during his absence. To say that he could not do this would be to take his property from him and give it to his landlord without any breach on his part of the contract of lease. His act did not serve to convert the stalks and growing grass from personalty to a parcel of the real estate. They remained personal property in the hands of plaintiffs and their seizure by defendant before the end of the leasehold term was a conversion of personal property, for which an action in the nature of trover will lie. It is immaterial that the grass could not have been taken in replevin because of the impossibility of manually severing it from the soil at that season of the year. As stated, that part of the grass that could have been severed by grazing animals was personalty and it is the unauthorized taking of or. intermeddling with the personal property of another that fixes a .liability in conversion.
The judgment is affirmed.