54 Neb. 769 | Neb. | 1898
The plaintiff herein alleged for cause of action that in a suit instituted in the county court of Ouster county
Many cases hold that under such a contract as we have herein before outlined the tenant is the owner of the crops until the division is made, and the owner of the land acquires and has no interest therein until his stipulated portion is set apart to him. (Rees v. Baker, 4 G. Greene [Ia.] 461; Alwood v. Ruckman, 21 Ill. 200; Woodruff v. Adams, 5 Blackf. [Ind.] 318. See, also, portion of note to Putnam v. Wise, 37 Am. Dec. [N. Y.] 319.) And it has been held that the landlord of such a lease has no leviable
for the debtor and his family necessary for six months’ support, either provided or growing, or both, and fuel necessary for six months.” In the chapter of the_Code of Civil Procedure relative to executions for the enforcement of judgments rendered by a justice of the peace is the following: “In all cases where any lands may have been let, reserving rent in kind, and when the crops or emblements growing or grown thereon shall be levied on or attached, by virtue of any execution, attachment, or other process against the landlord or tenant, the interest of such landlord or tenant, against whom such process did not issue, shall not be affected thereby.” (Code of Civil Procedure, sec. 1073.), This seems to be a direct recognition by the legislature of the doctrine that a landlord and tenant are tenants in common of growing crops where rent is reserved in a share of the crops and the
The supreme court of Kansas, in an opinion in the case of Polley v. Johnson, 23 L. R. A. [Kan.] 258, quote paragraph 5008 of the Code of that state (part of procedure applicable in actions before justices of the peace), as follows: “In all cases where any lands may have been let, reserving rent in kind, and when the crops or emblements growing or grown thereon shall be levied on or attached by virtue of any execution, attachment, or other process against the landlord or tenant,, the interest of such landlord or tenant, against whom such process was not issued, shall not be affected thereby; but the same may be sold, subject to the claim or interest of the landlord or tenant against whom such process did not issue;” and observe in relation to this and some other paragraphs considered in the same connection that' “While these sections do not reach the case we have under consideration, we think they show a recognition of what we regard as the settled doctrine of the common law,— that such growing crops are personal property, subject to sale on execution for the debts of the owner; and were we to hold a different rule to apply in this case, the only class of debtors benefited thereby would be those owning both the soil and the crop, for the section of the justice’s act just quoted renders the shares.of landlord and tenant, where that relation exists, both subject to levy and sale.” The question of a levy on the interest of a landlord or tenant in growing crops where rent is reserved in kind was not directly in issue, but the foregoing statement furnishes a very strong indication of what might be the conclusion of the court on the subject should it be presented. We feel bound to follow.the very evident intention of the legislators, and must conclude that the landlord’s interest in the crops was a leviable one; and it results that the judgment of the trial court must be reversed and the cause remanded.
Reversed and remanded.