Bechler v. Bittick

• Decision Date: 08 November 1938
• Docket Number: No. 24641.,24641.
• Citation: 121 S.W.2d 188
• Parties: BECHLER et ux. v. BITTICK et al.
• Court: Missouri Court of Appeals

121 S.W.2d 188

BECHLER et ux. v. BITTICK et al.

No. 24641.

St. Louis Court of Appeals. Missouri.

November 8, 1938.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Action in replevin by John L. Bechler and wife against James H. Bittick and wife and another to recover possession of a standing crop of corn. From an adverse judgment, plaintiffs appeal.

Affirmed.

Frank Dietrich and R. E. Kleinschmidt, both of Hillsboro, for appellants.

Terry, Terry, & Terry, of Festus, for respondent Claude McCulloch.

SUTTON, Commissioner.

This is an action in replevin commenced on October 23, 1935, to recover possession of a crop of corn standing in the field.

On February 16, 1934, defendants Bertha Bittick and James H. Bittick, her husband, by their warranty deed conveyed to plaintiffs, John L. Bechler and Jennie Bechler, his wife, a tract of land containing 135 acres in Jefferson County, Missouri. The conveyance was subject to a deed of trust held by the Jefferson Trust Company, amounting to $3,148. The consideration for the conveyance, as expressed in the deed, was one dollar. The deed was filed for record in the office of the Recorder of Deeds on February 20, 1935.

The evidence shows that during the season of 1935, Claude McCulloch, as a tenant of defendants Bittick, raised a crop of corn on 7 acres of said tract. This is the crop for which this suit is brought. The crop was standing in the field at the time of the commencement of this suit. There was a dwelling house on the tract of land described in the deed, where the defendants Bittick resided at the time of the making of the deed and continued to reside at the time of the commencement of this suit. A part of the tract was in the possession of a tenant of defendants Bittick, but the tenant had attorned to the plaintiffs. The tract of 7 acres on which the corn in suit here was grown remained in the possession of defendant McCulloch as tenant of defendants Bittick. The rest of the land remained in the possession of defendants Bittick.

A suit in ejectment was brought by plaintiffs against defendants Bittick for the entire tract of 135 acres. The suit was brought to the September term, 1935, in the Circuit Court of Jefferson County. The petition in said suit alleged that on February 16, 1935, plaintiffs were the owners of said tract and that defendants Bittick from and after said date continued to unlawfully hold possession of said tract to plaintiffs' damage in the sum of $300, and that the monthly rents and profits were $25, and prayed judgment for $300 damages for the unlawful withholding of the possession of said tract, and the further sum of $25 per month from the rendition of judgment until restitution of possession.

The answer alleged that there was no consideration for the making of the said deed of defendants to the plaintiffs; that plaintiff John L. Bechler represented to defendants that he could sell the farm for $8,000; that he asked and prevailed upon defendants to deed the land to him; that he stated that he would either sell the same for $8,000 or pay off two certain judgments against defendants and pay the defendants the sum of $400; that plaintiff John L. Bechler represented to defendants and led them to believe that he had paid off the deed of trust held by the Jefferson Trust Company; that in fact said John L. Bechler had not paid off said deed of trust, did not pay the judgments, and did not pay defendants $400.

The reply alleged that the consideration for said warranty deed was the agreement on the part of the plaintiffs to pay off said deed of trust, and that plaintiffs did pay off said deed of trust in accordance with said agreement.

The ejectment suit resulted in a finding and judgment for plaintiffs on October 12, 1935, for the possession of the entire tract of 135 acres, and for $15 monthly rents and profits.

Defendant Claude McCulloch was not a party to the ejectment suit, and no writ of restitution was issued on the judgment, but plaintiffs without a writ of restitution undertook to enter the field and gather the corn. This defendants refused to permit them to do. Thereupon, this suit was brought.

The court refused an instruction in the nature of a demurrer to the evidence requested by defendants Bittick, refused a peremptory instruction to find for plaintiffs as to defendant McCulloch requested by plaintiffs, gave a peremptory instruction to find for plaintiffs as to defendants Bittick requested by plaintiffs, and refused an instruction in the nature of a demurrer to the evidence requested by defendant McCulloch. The jury found that defendant McCulloch was entitled to two-thirds of the corn and that the value of said corn was $60, and further found the issues in favor of plaintiffs as to defendants Bittick. Judgment was given accordingly. Plaintiffs appeal.

Plaintiffs assign error here for the refusal of their peremptory instruction directing the jury to find for plaintiffs as to defendant McCulloch. Defendant McCulloch contends that plaintiffs failed to make out a submissible case and that his instruction in the nature of a demurrer to the evidence ought to have been given.

The law decisive of this case may be arrived at from a consideration of a number of Missouri cases.

In Jenkins v. McCoy, 50 Mo. 348, plaintiff had purchased a farm of one Fisher, and upon it was growing a crop of corn planted by defendant, who removed it after the purchase. The suit was brought to recover the value of the corn upon the assumption that the defendant was a trespasser and had no rights in the crop. In disposing of that case our Supreme Court, speaking through Judge Bliss, said:

"The plaintiff purchased and moved upon the farm in August, and admitting that defendant was a mere trespasser, does it follow that the crop when matured became the property of plaintiff? The plaintiff has all the rights of Fisher, of whom he purchased, and if the latter had planted the crop it would pass with the deed, and whoever afterwards should remove it would be liable for its value.

"But the land having been planted and cultivated by a stranger, and without the consent of Fisher, would he himself, had he never sold the farm, have any right to the value of the matured crop, had the trespasser succeeded in securing it? I think not. The defendant was a trespasser, but the value of what he raised is not the measure of damages. And besides, in the present case, when the defendant harvested the corn, he was in possession of the field in which it was raised. It had never been abandoned, and no actual possession had been taken by the plaintiff. The constructive possession of title would be good had not defendant been in actual occupancy, which occupancy continued until the crop was removed. * * * I know of no principle that would give him a title to what had been raised and removed, so as to make defendant liable, not for the use of the property, but for the value of the crop."

In Adams v. Leip, 71 Mo. 597, which was a suit to recover the possession of 504 shocks of wheat claimed by plaintiff in virtue of his ownership of the land on which the wheat was grown, the evidence showed that the wheat was sown by defendant on land owned by one Samuel, and that it was harvested and put in shocks by defendant. It also showed that between the time of the sowing and harvesting of the wheat Samuels sold and conveyed to plaintiff the land upon which the wheat was sown. The court said:

"Upon these facts alone, without regard to the question whether defendant was either a licensee or tenant of Samuel, or a mere trespasser in taking possession of the land, under the principle announced by this court in the cases of Jenkins v. McCoy, 50 Mo. [348] 349; Harris v. Turner et al., 46 Mo. 438; Morgner v. Biggs, 46 Mo. [65] 66, defendant was entitled to recover, provided there was no abandonment by defendant of the possession of the field on which the wheat was sown."

In Davis Brothers v. Callahan, 66 Mo.App. 168, which was a suit to recover damages for the conversion of a corn crop growing in the field, it appeared that in an action in ejectment Callahan obtained a judgment against Davis Brothers for the...