Culverhouse v. Worts

• Decision Date: 19 November 1888
• Citation: 32 Mo.App. 419
• Parties: W. C. CULVERHOUSE, Administrator, Respondent, v. RUSSELL WORTS, Appellant,
• Court: Kansas Court of Appeals

32 Mo.App. 419

W. C. CULVERHOUSE, Administrator, Respondent, v. RUSSELL WORTS, Appellant,

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Appeal from Cooper Circuit Court --HON. E. L. EDWARDS, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

Walker & Johnson and S. H. Baydes, for the appellant.

(1) This rent was not due until the crop had matured, and this was after the trustee's sale and purchase by the defendant. Ridgeley v. Stillwell, 27 Mo. 128; Burgee v. Turner, 20 Mo.App. 34; Vegeley v. Robinson, 20 Mo.App. 199. (2) The sale by the trustee, on September 3, 1887, extinguished the tenancy and defendant having purchased Elliott's land can plead his purchase in bar. R. S. 1879, sec. 3080; Gunn v Sinclair, 52 Mo. 327; Higgins v. Turner, 61 Mo 249; Silvey v. Summer, 61 Mo. 253. (3) The trustee's sale, on September 3, 1887, of the land, to defendant, gave defendant title not only to the land but the corn that was growing thereon. Steele v. Faber, 37 Mo. 17; Salmon v. Fewell, 17 Mo.App. 118. The evidence is conclusive that the corn was not matured, but was green, still growing and drawing sustenance from the soil, Even without any evidence on this point, the court would take judicial notice that the corn was not matured on the third day of September. Garth v. Caldwell, 72 Mo. 622; Bliss on Code Plead. sec. 188. The declarations of law asked by defendant embodied these principles, and should have been given, and the declarations of plaintiff should have been refused, as they announced a contrary principle. For these reasons we confidently think the case should be reversed.

Cosgrove & Johnston, for the respondent.

(1) The instructions on both sides submitted the question as to the maturity of the corn on the third of September, 1887, the date of defendant's purchase of the land. The evidence was conflicting on this point, but the court, sitting as a jury, found that the corn on that date was matured, and, therefore, did not pass with the land to the defendant. It was not growing corn. This court will not disturb the finding of the court below, unless there was no evidence at all upon which to base it. Salmon v. Fewell, 17 Mo.App. 118; Downard v. Groff, 40 Iowa 597; Baum v. Fryrear, 85 Mo. 151. While the courts will take judicial notice that certain crops mature at certain seasons they will not take notice of the precise time of such maturity. Bliss on Code Plead. sec. 188; Garth & Caldwell, 72 Mo. 622; Dixon v. Niccols, 39 Ill. 372. In the case of Salmon v. Fewell, 17 Mo.App. 118, the case chiefly relied on by counsel for appellant in support of their case, it is stated by the court that " defendant offered evidence tending to show that the crop was mature at the time of the sale. And plaintiff offered evidence tending to show that the same was not mature at the time of the sale. The court found that said crop at the time of the sale was not mature." (2) The evidence shows that, after the purchase of the land by defendant, he gathered and delivered to plaintiff the corn in controversy as he had agreed and promised to do. Such delivery gave plaintiff the legal title to the corn, and authorized him to sue anyone interfering with it. (3) The instructions given for plaintiff, taken together, fairly present all the issues. The first instruction asked by defendant was in the nature of a demurrer to the evidence and was properly refused. Defendant's second instruction simply submitted the question of the maturity of the corn at the time of his purchase of the land, which was fairly submitted by plaintiff's second instruction, and the refusal to give it could not have affected the result. It was only a repetition of an instruction already given, and the court committed no error in refusing it. Boone v. Railroad, 20 Mo.App. 232; Walker v. Martin, 10 Mo.App. 589; Condon v. Railroad, 78 Mo. 567; State v. Kelley, 85 Mo. 143; Ins. Co. v. Hauck, 83 Mo. 21. The third instruction asked by defendant is based upon the theory that the corn in controversy passed with the land to him by the sale under the deed of trust, whether matured or not at the time of the sale. This is not the law and the instruction was properly refused. See authorities above cited.

RAMSAY J.

The plaintiff, as administrator of the estate of J. A. Elliott deceased, brought this action of replevin, in one of the justice's courts of Cooper county, for possession of some eighty barrels of corn. Plaintiff recovered a judgment in the justice's court, from which the defendant appealed to the circuit court of Cooper county, where the cause was tried again before the court, a jury being waived by the parties, resulting in a judgment for plaintiff from which the defendant has appealed to this court.

The facts established by the evidence are substantially as follows: On October 17, 1882, J. A. Elliott executed and delivered his deed of trust, of that date, to J. H. Wooldridge, by which he conveyed to R. W. Whitlow, trustee, the east half of the northwest quarter of section 11, in township 48, of range 16 (with other lands), in Cooper county, for the purpose of securing to Wooldridge the payment of a two thousand-dollar note. The deed of trust contained the usual provisions for sale of the land in case of a default in payment of the note secured by it. In March, 1886, Elliott rented this eighty acres of land, which was still incumbered by the deed of trust mentioned, to the defendant, under a contract by which the defendant agreed to pay said Elliott two-fifths of the corn raised on the land, the corn to be by defendant gathered and cribbed on the premises. No time was agreed upon between the parties when the rent corn should be delivered other than " in the fall when the defendant gathered his corn." On July 9, 1886, J. A. Elliott died and the plaintiff Culverhouse, on taking charge of his estate, continued the lease with defendant for the year 1887 upon the same terms as to payment of rent and amount of rent, etc. On the third day of September, 1887, R. W. Whitlow, trustee in the deed of trust before mentioned, sold the land, thus rented to defendant, under said deed of trust, at public sale, and the defendant purchased the same for the price of sixteen hundred dollars and received a deed therefor from said trustee.

The contention in this suit is over the ownership of two-fifths of the corn raised by defendant on the land during the summer of 1887, the plaintiff claiming it as rent due to him under his contract with defendant, and the defendant claiming that by the sale of the land which he had rented, under the trust deed, the lease between him and plaintiff was extinguished, that the corn growing on the land at date of sale passed with the land and that he, being the purchaser at such sale, became the owner of it by right of his purchase.

Both plaintiff and defendant introduced evidence concerning the condition of the corn on the third day of September, 1887, the day the land was sold under the deed of trust, the plaintiff aiming thereby to show that the corn had matured to such an extent that it no longer drew nourishment from the soil, and the defendant intending by such evidence to prove that the corn was not then matured, but was still drawing sustenance from the ground.

The plaintiff introduced some statements made by defendant, tending to show that defendant recognized the right of plaintiff to a portion of the corn, after September 3, 1887. Upon the other hand the defendant testified that he had been informed by Wooldridge before the sale of the land, that the purchaser at the sale under the deed of trust would get the corn, that he expected to get the crop when he purchased, and the evidence of both parties showed that in the month of November, when defendant was gathering the corn, the plaintiff was at his place, and that defendant asserting his claim to the corn, they went together to Boonville to consult with counsel as to the matter. As a result of this inquiry into their respective rights in the premises this suit was instituted.

The plaintiff asked, and, against the objection of defendant, the court gave the following declarations of law:

" 1. The court declares the law to be, that by the sale of the land, on which the corn in controversy was growing, under a deed of trust, and the purchase thereof by the defendant, did not give the defendant any right to the corn, but the same being personal property remained the property of the plaintiff.

2. If the court, sitting as a jury, believes that, at the time of the sale of the land under the deed of trust, and the purchase of the same by the defendant, the corn in controversy was standing thereon, and had ceased to draw nourishment from the soil, then said corn was personal property and did not pass with the land to the defendant.

3. If the court, sitting as a jury in this case, shall find, from the evidence, that the defendant promised and agreed to deliver to the plaintiff two-fifths of the corn raised on said land, rented by plaintiff to defendant, and that after said renting said land was sold under deed of trust, and the defendant became the purchaser thereof, and, after the date of the purchase of said land by the defendant, he promised and agreed to gather the two-fifths of said corn, and place it in a house on said land, designated by plaintiff, and did so gather and store said corn and afterwards claimed and took possession of the same as his own, then such gathering and storing said corn was a delivery to plaintiff by the defendant and the plaintiff is entitled to recover in this action, and the finding of the court will be for him."

The defendant then asked the court to give the following declarations of law, which the court refused:

" 1. The court declares

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