Pearson v. Lafferty
| Decision Date | 06 March 1917 |
| Citation | 193 S.W. 40,197 Mo.App. 123 |
| Parties | JOHN A. PEARSON, Respondent, v. MARTIN LAFFERTY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Louisiana Court of Common Pleas.--Hon. Edgar B Woolfolk, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Robt. A. May and James E. Pew for appellant.
Pearson & Pearson for respondent.
This is an action of replevin, instituted was entitled to the possession of two hundred and fifty bushels of corn, of the value of $ 112.50, wrongfully before a justice of the peace. Plaintiff alleged that he obtained by defendant. On appeal to the Louisiana Court of Common Pleas three trials, it is said, were had, two juries being unable to agree. The third and last trial resulted in a verdict and judgment for plaintiff, and the case is here on defendant's appeal.
Defendant, a butcher residing in Louisiana, Missouri, owned a tract of land near that city; and early in 1912 two colored men, Bibb and Johnson, also living in Louisiana, raised a crop of corn upon the land under an oral agreement entered into between defendant and Bibb. Defendant appears to have dealt with Bibb exclusively, and the latter will therefore be referred to as being the other party to the transaction throughout. There is some conflict in the testimony as to the exact nature of this agreement, but it is undisputed that defendant, as owner of the land, was, in any event, to receive one-half of the crop grown thereupon. On June 6, 1912, Bibb executed a chattel mortgage to plaintiff upon the growing crop to secure a note of $ 102.40, due in December, 1912, for money borrowed from plaintiff; and plaintiff's action in replevin proceeds upon the theory that by virtue of this mortgage he acquired title to Bibb's one-half of the corn raised upon and harvested from this land.
Defendant testified that, as a part of the original agreement, and upon Bibb's solicitation, he agreed to furnish Bibb feed for the latter's horses, and supplies from his butcher shop, to enable Bibb to plant and cultivate the crop; and that it was agreed that defendant would be reimbursed for such advances out of Bibb's half of the corn raised. And defendant further testified that until so reimbursed he was to have and retain title to the entire crop. His testimony proffered along this line was at first excluded, but in answer to a question, to which no objection appears to have been interposed, he said;
Bibb, testifying that defendant was to have one-half of the corn, denied that there was any agreement made to the effect that defendant was to retain the title to the entire crop until he had been reimbursed out of Bibb's one-half thereof for advances made. He admitted, however, that after the making of the agreement and before commencing to plow the land, defendant, at his solicitation, supplied him corn with which to feed his team while "putting in" the crop; and that defendant "was to get that back out of the new corn." He further testified that defendant advanced money to pay for shocking the corn; but further testimony along this line was excluded.
The mortgage executed by Bibb to plaintiff on June 6, 1912, was not recorded until August 2, 1912. There is a conflict in the testimony as to when defendant learned of its existence. Plaintiff testified that he told defendant thereof "a day or two" after its execution; but defendant denies this, and asserts that he knew nothing of the mortgage until the corn had matured and a few loads thereof had been hauled away. It appears that the chattel mortgage purported to convey to plaintiff the entire crop and not merely Bibb's portion thereof.
Defendant undertook to prove that after the execution of the mortgage and while it was withheld from record, he made advances to Bibb, pursuant to the original agreement as testified to by defendant, amounting to $ 130.89; but the court, on objections of plaintiff's counsel, refused to permit such proof to be made.
The corn raised on defendant's land amounted perhaps to something over eight hundred bushels, and when the crop had matured a few wagon loads were hauled away by Bibb and Johnson--two of which plaintiff received--and the remainder was by them put in cribs on defendant's place, the bulk of it being placed in one crib; it having been agreed between defendant and Bibb that defendant would take Bibb's half of the corn, less the few loads which had been hauled away, at forty cents per bushel, deducting for the advances made to him and paying cash for the remainder, if any.
It appears that plaintiff was informed by Bibb of the proposed "sale" to defendant of Bibb's portion of the corn; and that plaintiff conferred with defendant concerning the same. There is no doubt that the corn sought to be replevied was put in defendant's crib with plaintiff's consent, but there is a conflict in the testimony as to the conversation had between plaintiff and defendant concerning the matter. Plaintiff testified that he did not consent to a present sale to defendant; that it was agreed that the corn would be weighed and put in defendant's crib, and that defendant agreed to "take up" the note secured by the chattel mortgage, when due. Defendant, on the other hand, asserts that he merely agreed to pay plaintiff whatever might be found to be due Bibb on a settlement with him. He testified further that on a settlement with Bibb in respect to the advances, it was found that he owed Bibb nothing, but that on the contrary Bibb was still indebted to him in a small sum. And Bibb's testimony is that this was the result of the settlement had between him and defendant.
There is likewise considerable conflict in the testimony as to how much, if any, of the corn sought to be replevied--which defendant was feeding to stock--remained in the crib in question at the time of the institution of the suit. But there is testimony in plaintiff's behalf going to show that at least two hundred and fifty bushels then remained in this crib.
The jury returned a verdict for plaintiff, finding that "the property described in the petition, to-wit, one hundred and ninety bushels of corn, was at the date of the institution of this suit in the possession of the defendant," etc., assessing the value thereof at $ 76. The judgment entered upon the verdict is that the plaintiff "have and recover of the defendant, Martin Lafferty, $ 76, the sum aforesaid," together with interest and costs, "and that execution may issue therefor."
That the relation of landlord and tenant did not exist between defendant and Bibb, we think is entirely clear. The latter was a mere cultivator of defendant's land--a cropper--not living thereupon, and having no estate or interest in the land itself, but the mere right to enter upon it for the purposes of planting, cultivating and harvesting the crop. He enjoyed no right thereto for any fixed period, and had no possession thereof to the exclusion of the owner, as does a tenant. The possession of the land is to be regarded as remaining in the owner, subject to the right of the cultivator to go upon it for the purposes above mentioned. The relation existing between the owner and the cultivator necessarily depends upon the terms of the agreement in each case; and though land be cultivated "on shares" a tenancy may nevertheless exist. Under the facts here present, however, there can be no doubt that Bibb was not defendant's tenant, but a mere cultivator or cropper, whose rights and powers depend upon the nature of the agreement which may be found to have been entered into between him and defendant and acted upon by them. [See Johnson v. Hoffman, 53 Mo. 504; Kamerick v. Castleman, 23 Mo.App. 481; Moser v. Lower, 48 Mo.App. 85; Davies v. Baldwin, 66 Mo.App. 577; Shoemaker v. Crawford, 82 Mo.App. 487; Black v. Scott, 104 Mo.App. 37, 78 S.W. 301; Haggard v. Walker, 132 Mo.App. 463, 111 S.W. 904; Kelly v. Rummerfield, 117 Wis. 620, 98 Am. St. Rep. 951, 94 N.W. 649, and note, l. c. 953 et seq; 8 Ruling Case Law, p. 373 et seq; 12 Cyc. 979, 980.]
Apart from divergencies in the results reached in the cases due to differences in the various agreements involved, there is considerable conflict of authority as to the respective interests or rights of the owner and the cultivator or cropper in and to the crop itself. It appears that the trend of judicial authority is to hold that a contract whereby one is allowed the use of land to cultivate, the owner to have a share of the produce for its use, will, in general, at least, create a tenancy in common in the growing crop. And this is said to be so whether the agreement operates as a lease or a mere "cropping contract." [See Johnson v. Hoffman, supra; Kamerick v. Castleman, supra; Moser v. Lower, supra; Note to Kelly v. Rummerfield, supra, 98 Am. St. Rep. 959 et seq; R. C. L. 374, 375; Davies v. Brown, 34 N.H. 454; Olive v. Martell, 83 Vt. 130; Fuhrman v. Interior Warehouse Co., 64 Wash. 159, 37 L. R. A. (N. S.) 89, 116 P. 666; Dickey et al. v. Waldo, 97 Mich. 255, 23 L. R. A. 449, 56 N.W. 608; Baughman v. Reed, 75 Cal. 319, 17 P. 222; Sims v. Jones, 54 Neb. 769, 75 N.W. 150.]
But cropping contracts frequently provide that until a division is had of the crop,...
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