Consol. Land & Irrigation Co. v. Hawley
Citation | 63 N.W. 904,7 S.D. 229 |
Court | Supreme Court of South Dakota |
Decision Date | 29 June 1895 |
Parties | CONSOLIDATED LAND & IRRIGATION CO. v. HAWLEY, Sheriff. |
1. In an action for the conversion of personal property, where the position and claim of the taker, as shown by the answer, made it evident that a demand would have been merely perfunctory and fruitless, no demand is required.
2. If, upon any material question of fact, the evidence is such that the jury might reasonably have found for the plaintiff, it is error for the court to direct a verdict for the defendant.
3. While ordinarily, under a lease or contract providing for a division of the crops between landlord and tenant, they are tenants in common of such crops, it is competent for the parties in such lease or contract to agree otherwise, and to secure to the owner of the land the ownership and title to the product until division, or the performance of conditions named.
Appeal from circuit court, Brookings county; J. O. Andrews, Judge.
Action by the Consolidated Land & Irrigation Company against William H. Hawley, sheriff of Brookings county, for conversion of wheat. From a judgment for defendant, plaintiff appeals. Reversed.Horace Comfort, for appellant. Philo Hall and J. P. Cheever, for respondent.
The appellant, a corporation, being the owner of a farm in Brookings county, made a written contract with one Bucholtz, by which the latter was to work the same during the farming season of 1891 and 1892, putting in such crops as the party of the first part (appellant) might direct. This instrument-and we think it is unimportant whether it is called a “lease,” or simply a “contract”-provided that Bucholtz was to furnish everything, and to till the farm in a husband-like manner. It then set out a number of agreements on the part of Bucholtz, as to plowing back a portion of the land after the harvesting of the crops, and maintaining the improvements thereon in good repair, and other express stipulations looking to the conservation of the property. It is then therein agreed as follows: In September, 1892, respondent, as sheriff, levied upon and took possession of certain grain under an attachment against Bucholtz, and disposed of it. Appellant then brought this action against the sheriff, for conversion, claiming to be the owner of the grain so taken. At the close of the evidence the court directed a verdict for the defendant, and from a judgment entered accordingly-a new trial being refused-this appeal is taken.
Respondent seeks to justify this ruling of the trial court upon several grounds. He first contends that no conversion was proved, because no demand was shown to have been made upon the sheriff for a return of the grain so taken. If the grain taken under this attachment against Bucholtz was not his property, but the property of appellant, it is very doubtful if the circumstances of the respondent's seizure and Bucholtz's possession would have relieved it of the character of a wrongful taking, so as to make a demand necessary, as against the taker. See Rosum v. Hodges, 1 S. D. 313, 47 N. W. 140. But, independently of this, no demand was necessary, because respondent absolutely denied the ownership of appellant, or his right to possession. He defended the taking and possession on the ground that Bucholtz, and not appellant, was the rightful owner and possessor. In such case, where the position and claim of the taker make it evident that a demand would have been merely perfunctory and fruitless,...
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