Sutherland v. Carter

52 Mich. 471 | Mich. | 1884

Sherwood, J.

This action is replevin for a quantity of wheat and oats raised by Carter, as Mrs. Sutherland’s tenant, on her farm, she having on the 1st day of January, 1880, leased the same to Carter for three years,, he agreeing to pay her one-half the hay, grain, roots and fruits, and in good season and good order, as her share for the rent, and deliver the same to her on the farm. They were to share equally in all pasturage and the profits therefrom.

The parties seem to have got along, without difficulty until October, 1882, when Carter threshed the grain. At this time when the threshing was completed the plaintiff asked to have her half of the grain delivered to her according to the terms of the lease. This Carter refused to do, and immediately carried the wheat off from the farm to a neighbor’s barn (said neighbor being the other defendant named in the record) and locked it up. Plaintiff went to the barn and demanded her half of the grain again, of both the defendants, and they refused to comply with her request and she therefore brought this suit.

The case was tried by the court and plaintiff recovered her damages and costs, the property having been taken on the writ and delivered to plaintiff.

' The defendant Carter brings error and the case is before us on findings by the circuit judge.

In addition to the facts above stated the circuit judge found that at the time the demand was made and the suit brought the grain was an undivided mass, but was of the same general kind, quality and value ; and the value of the grain.

‘The court found as conclusions- of law that the plaintiff became owner of one-half the grain raised, and that under the facts in the case she was entitled to maintain her suit against Carter therefor.

We think the circuit' judge was correct. The plaintiff was tenant in common of the grain, and after it was threshed she was entitled to her one-half thereof, and it was Carter’s duty to deliver it to her when she demanded it upon the farm. It was her property, and the action will lie in such a case under the facts found in this record. Wells on [Replevin § 205; Kaufmann v. Schilling 58 Mo. 219; Inglebright v. Hammond 19 Ohio 337; Ryder v. Hathaway 21 Pick. 305; Warner v. Cushman 31 Ill. 283; Tayl. Landl. & T. 19 (6th ed.) and authorities cited under note 5; Caswell v. Districh 15 Wend. 379; Crouse v. Derbyshire 10 Mich. 479; Fiquet v. Allison 12 Mich. 328; Kindy v. Green 32 Mich. 310.

The judgment must be affirmed with costs..

The other Justices concurred.