78 Neb. 40 | Neb. | 1907
On the 5th day of March, 1904, plaintiff leased to the defendants in writing a certain tract of land described in the lease and situated in Ouster county, Nebraska, for a period of one year. The conditions of the lease material to the controversy were that the defendants were to pay $125 for the use of the pasture land on the leased premises, this agreement being evidenced by two promissory notes, one for $50 due October 1, 1904, and one for $75 due January 1, 1905, and that they were also to pay $1 an acre for all the land cultivated in millet, and to deliver to the plaintiff on the premises one-third of all the com raised thereon. Plaintiff agreed to make certain repairs on the windmill on the place, and also reserved
The testimony in the record is neither clear nor convincing on the question of the insolvency of the defendants, nor is it satisfactory on the allegation that the corn was not properly divided by the defendants with the plaintiff when it was gathered. At the time the suit was instituted there were between 600 and 700 bushels of corn still standing in the field ungathered, but the evidence shows that this was not through the neglect of the defendants, but because of a snow storm in the month of December which covered up so much of the standing corn that it could not be gathered without waste until the snow malted. In fact, the record shows that the plaintiff requested the defendants not to gather this corn until the snow was gone, so that, as we view it, there is no ground for equitable relief disclosed by the evidence and pleadings, unless the clause in the lease providing for a lien on the crop raised for payment of the rent operated as an equitable mortgage upon the grain raised upon the leased premises. The question as to the validity of a similar clause in a lease was before this court and received careful consideration in the recent case of Brown v. Neilson, 61 Neb. 763, and it was there held that such a clause in the lease is ineffectual to create either a legal or an equitable lien for rents due and in arrears on the crop raised thereafter on the leased premises. The case is to be distinguished from Ryan v. Donley, 69 Neb. 623, in which an agreement to give a mortgage when the crops were in existence was enforced.
We are therefore of opinion that the learned trial judge erred in making the injunction prayed for perpetual, and we recommend that the judgment of the district court be reversed and the cause be remanded, with directions to dissolve the injunction heretofore granted, and to retain
By the Court: For the reasons given in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded, with directions to take further evidence, if offered, as to the insolvency of defendants and the equities of the parties.
Reversed.