87 Kan. 727 | Kan. | 1912
The opinion of the court was delivered by
This was an action brought by Adaline E. Story, the appellant, to recover 990 bushels of wheat from Ignetz Lang and Rudolph Augustine, appellees, who made a cross-claim and asked for judgment against the appellant for 632 bushels of wheat which they alleged she wrongfully took from them.
In 1903 appellant sold a tract of land to John Younger for which he agreed to pay to her, within a period of eleven years, 3000 bushels of wheat, or, in lieu thereof, the value of that quantity of wheat reckoned at the price of fifty cents per bushel. The grantee was required to sow wheat on certain tillable land and to turn the crop over to the grantor in payment of the land, except so much as was necessary to pay for the seed and the harvesting and threshing of the crops. Shortly after the contract was made Younger transferred his interest in it to Paul Flax,
The contention that the right to the crop was adjudicated in the former action is not sound. That was primarily an action to cancel the contract be
In Sornberger v. Berggren, 20 Neb. 399, 30 N. W. 413, a contract for the sale of a tract of railroad lands was made which contained a stipulation that if the purchaser or his assignee failed to make the payments at the specified time and to strictly comply with all the ■conditions it should, so far as the grantor was concerned, become null and void. It was assigned and the assignee rented the land to a tenant for a share ■of the crops, and it was held that the rights of the assignee were not terminated until the contract was actually forfeited, and the fact that he had been in default for several years did not deprive his tenants of their share of the immature crop growing on the land
(See, also, McKean v. Smoyer, 37 Neb. 694, 56 N. W. 492; Monday v. O’Neil, 44 Neb. 724, 63 N. W. 32; Reeder et al. v. Sayre, 70 N. Y. 180; Sievers v. Brown, 36 Ore. 218, 56 Pac. 170.)
The appellees were in no sense trespassers as they contracted with a purchaser in possession. The court found that they did not participate in any wrongdoing of Flax, but on the other hand believed that he had a right to contract with them, and further believed that Flax could not be dispossessed until the eleven-year period had expired as an action in relation thereto had been decided in his favor. The matter of crops was not referred to in the equitable action wherein judgment was rendered in favor of appellant, and the court rightly held that the right to the crops was not put in issue in that case. That question not being adjudicated and appellees being tenants of one who had a contract which on its face had three years to run there is no reason why they are not entitled to a tenant’s share of the crop which they planted. In Sornberger v. Berggren, 20 Neb. 399, 30 N. W. 413, it was said:
“At common law, which prevails in this state, a tenant who sows or plants a crop, where it is not possible for him to know that his estate will terminate before the crop can ripen, and it does terminate before, is entitled to harvest and secure the’crop at maturity. This rule is applied to tenants for life and tenants at will, unless' the title under which they claim contains ■some express provision to the contrary.” (p. 404.)
This appears to have been done and the judgment is affirmed.