138 Iowa 219 | Iowa | 1908
Under a lease for five years ending March 1, 1905, the defendant went into possession of plaintiff’s farm, and continued in occupation thereof as tenant until the expiration of the term. The lease was in the usual form of printed farm leases, but contained written therein on a blank line these words, “ No straw to be removed from the farm.” Plaintiff alleged that notwithstanding this express stipulation the defendant did, in August, 1904, “ take, remove, and carry away from the said premises, and convert to his own use, straw raised and grown upon said premises, to-wit, thirty tons, and of the aggregate value of, to-wit, $120,” and judgment for that amount was asked against defendant. The defendant admitted the execution of the written contract of lease, and “ that he removed from the said premises not to exceed eight tons of straw, for his convenience in the care and use of the same, which he had a right to do,” and alleged that “ the plaintiff had no interest in the straw, except that it was to remain and be consumed on the farm, so that the remnants and rotten remains of the same would stay on the land and serve to fertilize the same.” By amendment to his answer defendant averred an offer to return the straw, which plaintiff refused.
There can be no question that plaintiff’s action was for conversion and not for damages for breach of covenant. Plaintiff expressly alleges the taking, carrying away, and conversion of the straw, and defendant admitting the act questions only plaintiff’s right to recover, insisting as a reason why there should be no recovery that plaintiff had no interest in the straw save to have it remain upon the farm. This was the theory on which the case was submitted to the jury; for the court instructed that if plaintiff established by a preponderance of evidence that defendant converted the straw without plaintiff’s consent the jury should find a verdict in plaintiff’s favor for the value of the straw converted. The court therefore plainly erred in authorizing a verdict for defendant on the evidence, which the court assumed to be sufficient to support a finding that defendant offered to return the straw.
It is generally held that manure produced during the tenancy becomes a part of the premises and cannot be removed by the tenant. Taylor, Landlord and Tenant, section 541; Brigham v. Overstreet, 128 Ga. 447 (57 S. E. 484, 10 L. R. A. [N. S.] 452). Straw from which the grain has been threshed is not, however, in itself manure, but is a part of the crop, and belongs to the tenant in the same way and to the same extent as the grain; and its ownership is not controlled by any custom that the landlord is entitled to the straw, unless such custom has in some way become a part of the contract. Craig v. Dale, 1 Watts & S. (Pa.) 509 (37 Am. Dec. 477); Iddings v. Nagle, 2 Watts & S. (Pa.) 22;
In general, the tenant is the owner of the crops produced on the leased premises, and the landlord has no right or title thereto, nor interets therein, save as he may have a lien. Colville v. Miles, 127 N. Y. 159 (27 N. E. 809, 12 L. R. A. 848, 24 Am. St. Rep. 433); McCombs v. Becker, 3 Hun (N. Y.) 342; Doremus v. Howard, 23 N. J. Law, 390; Brown v. Turner, 60 Mo. 21. Difficulty has been experienced in determining the interest of the landlord in the crops where the rent is to be paid by share. Orcutt v. Moore, 134 Mass. 48 (45 Am. Rep. 278) ; Symonds v. Hall, 37 Me. 354 (59 Am. Dec. 53); Turner v. Bachelder, 17 Me. 257. But in the case before us there was no contention that the landlord was entitled to any share in the crop. The title of the defendant to the straw was therefore complete and absolute, unless the stipulation that it should not be removed gave the plaintiff a property interest therein. As already indicated, the result did not follow from the stipulation. In Colville v. Miles, 127 N. Y. 159 (27 N. E. 809, 12 L. R. A. 848, 24 Am. St. Rep. 433) the view of the Massachusetts court in Heald v. Builders’ Mutual Fire Insurance Co., 111 Mass. 38, is said to be in conflict with the rulings of the New York courts, and we think that so far as any suggestion is made therein of a property right resulting to the landlord by reason of such stipulation, the case is contrary to reason and authority. What was in fact decided in that case was that a tenant who had agreed not to sell, dispose of, or carry away any of the hay or fodder of any kind, but had covenanted to feed the same to stock to be kept on the premises,
As the plaintiff was not under any circumstances en