Clauson v. Larman

• Decision Date: 05 May 1919
• Docket Number: No. 13050.,13050.
• Parties: CLAUSON et al. v. LARMAN et al.
• Court: Missouri Court of Appeals

211 S.W. 912

CLAUSON et al. v. LARMAN et al.

No. 13050.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

"Not to be officially published."

Suit by Elizabeth Clauson and others against Benjamin W. Lerman and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Robert M. Reynolds, of Marshall, for appellants.

Duggins & Duggins, of Marshall, for respondents.

TRIMBLE, J.

This is a suit to recover the value of plaintiffs' undivided three-fifths interest in some corn, the whole of which the defendant Benjamin W. Larman is alleged to have converted to his own use. Plaintiffs are three of the five heirs of Mathias Larman, who died intestate December 5, 1915. Defendants Benjamin W. Larman and Annie K. Schaeffer are the other two; the latter being made a party defendant because she refused to join in the suit. Prior to his death Mathias Larman was declared to be of unsound mind, and guardians had been appointed, who in August, 1915, by written contract, leased their ward's land to one Suitzmeyer for a term commencing March 1, 1916, and ending March 1, 1917, lessee to deliver one-half of the corn grown, snapped, and in the crib on the farm as rent. Suitzmeyer at once entered into possession of said land, and during the season of 1916 raised a crop of corn thereon.

At the May term, 1916, in a partition suit of the land among the heirs of said decedent, an order of sale of said land was made; the land not being susceptible of division in kind. The sheriff, under the decree, advertised and sold the land on September 18, 1916. At the time of the institution of the suit, the rendition of the decree, and of the sale, the lessee, Suitzmeyer, was in full possession of the land, living upon it and occupying the house thereon. When the land was sold on September 18, 1916, the defendant Benjamin W. Larman was the successful bidder and became the purchaser of the farm. At the time of the sale the corn grown by the tenant had matured and was ready to be gathered. The tenant began cutting the second day after the sale, and later on, and before the expiration of his term, he gathered and cribbed on the farm the corn due as rent. Thereafter the defendant Benjamin W. Larman sold said corn for $498.50, and converted the proceeds to his own use, to recover three-fifths of which this suit is brought.

The defendant Larman's answer was, and his defense is, that nowhere in the partition proceedings, the report of sale, or the sheriff's deed was any reservation of the rent on the land, and that by virtue of the sale and deed the corn passed with the realty to him as the purchaser.

Plaintiffs, in their reply, set up an agreement made by the heirs the day before and on the day of the sale, in which agreement Larman himself joined, whereby it was agreed that at the sale the corn crop should be reserved, the purchaser would not get the corn, and that, as the place was rented until March 1, 1917, the purchaser would not...