217 S.W. 871 | Mo. Ct. App. | 1920
This is a suit to replevin corn standing in a field. Plaintiff recovered a verdict and judgment and both parties have appealed to this court. We will first take up the points raised by the defendants. This case is a sequel to a long litigation conducted by Harriett McQuitty to establish by ejectment title to forty acres of land in Boone County, Missouri. [See McQuitty v. Wilhite,
Defendant D.C. Steckdaub, in August, 1917, rented to his sons, who are his co-defendants, the land in controversy *394 under an agreement providing that the father was to furnish the land, teams, tools and seed and his sons the labor. The crop was to be divided five-twelfths to the father and seventh-twelfths to the two sons. The sons plowed the land in the early fall of 1917 and planted the crop of corn in the Spring of 1918. On September 14, 1918, Harriett McQuitty conveyed the land by warranty deed to this plaintiff. The deed included "the crop of corn growing upon said 40 acres of land." On September 17, 1918, plaintiff went upon the land and cut a small shock of corn upon the premises. Some time prior to that plaintiff notified the defendants that the corn was his and for them not to remove any of it. On the 25th of September, 1918, plaintiff took three negroes out to the land and commenced to enclose the 40 acres with a fence. They cut some of the corn to make a fence row and dug a few post holes. They returned the next day to again work on the fence when they were interrupted by the defendants, Martin and John Steckdaub, and a brother, Frank Steckdaub, who came to the land with two shot guns and a revolver. With these weapons they drove the negroes off and presented the fire arms to plaintiff, telling plaintiff that he should not put his foot on the land and should not have an ear of the corn. Evidently believing that discretion was the better part of valor, plaintiff, together with his help, retired from the land. In October, 1918, while the corn was standing on the ground unharvested this suit was filed to replevin the corn. The corn, consisting of 688 bushels, was afterwards gathered by defendant and removed to the farther's place. There was testimony that it was worth from $1.50 to $1.90 per bushel. The jury returned a verdict and judgment in favor of plaintiff in the sum of $709.
Defendants insist that even though their possession of the land was wrongful that they were entitled to the possession of the crop, as the same was matured at the time Harriett McQuitty was put in possession of the land. There is no merit in this contention. Crops planted *395
by an intruder, so long as they remain on the land unsevered, are the property of the owner of the land. [Baker v. McInturff,
It is contended that even though the defendant D.C. Steckdaub is not entitled to his part of the crop that his sons, who were his tenants, are entitled to their share, for the reason that in the interests of agriculture a tenant who leases land from the apparent owner of the land is in titled to the assurance the his crop will not be taken from him. It is well established that tenants are in no better position than a landlord in a situation of this kind. [McGinnis v. Fernandes,
It is claimed that because there was no affidavit, bond or seizure of the property by the sheriff before judgment, that no judgment in replevin could have been rendered. Under section 2637, Revised Statute, 1909, suit for replevin in the circuit court may be brought by merely filing a petition without affidavit or bond and the case may proceed to judgment without taking the property. [White v. Grace,
It is insisted that although Harriett McQuitty was put in possession of the property, that on the occasion of the exhibition of the fire arms plaintiff was ousted and as the crop at the time this suit was filed was on land in adverse possession of others, replevin would not lie. "The fact that the defendant in ejectment re-enters after having been dispossessed, and harvests the crop that was growing at the time he was ejected, does not affect the plaintiff's title to it." [8 R.C.L., pp. 367, 368.]
It is claimed that as Harriett McQuitty obtained a judgment for the rents and profits until restitution of the land and that the rents were paid by the defendant D.C. Steckbaud to the sheriff up to the date of the restitution of the land to Harriett McQuitty, that plaintiff is not entitled to recover the corn as there cannot be a recovery of both rents and the crop that was raised *397 during the season for which rent was paid. Harriett McQuitty's attorney refused to take the rent from the time of the planting of the crop until the date of the restitution, but defendants urge this would make no difference, for the reason that having once elected by the judgment to take the rents, she could not afterwards change her mind when she found a valuable corn crop on the premises.
Defendants seem to base their contention upon the theory that plaintiff's grantor having asked and secured judgment for rents placed herself in the position of a quasi landlord to defendant D.C. Steckdaub and having, in effect, rented the property to said defendant she could not take the corn raised on the land by him. The relationship between the plaintiff and defendant in ejectment is the very antithesis of that existing between landlord and tenant. Under our statute (Sec. 2394, R.S. 1909) the rents are recovered as damages for the wrongful occupancy. The relationship between Harriett McQuitty and D.C. Steckdaub cannot be likened in any respect to that of landlord and tenant.
However, it is held in the case of Gardner v. Kersey,
The point in plaintiff's appeal is that defendant D.C. Steckdaub testified that there were 688 bushels of corn raised and that it was worth at least $1.50 per bushel. Plaintiff's witnesses placed the value as high as $1.90 per bushel. Plaintiff urges that under said defendant's admission plaintiff was entitled to a verdict of $1032, and as the verdict was for only $709, that the judgment should be reversed and the cause remanded with directions to the trial court to enter judgment for the sum of $1032. Plaintiff, in support of his contention that we have power to do this, cites cases holding that *399 where there is a cause of action upon an admitted contract and the evidence fails to disclose any valid defense to such contract then judgment may be directed for the plaintiff as per the terms of the contract. That is not the situation here. Plaintiff cites no case holding that an appellate court can direct a judgment in the face of finding of the jury in a case involving an unliquidated amount. We know of no case that would permit us to take such a step. Plaintiff states in his brief that if his point is ruled against him that he does not want the case remanded but desires that the judgment be affirmed.
The judgment is affirmed. All concur.