Fischer v. Johnson

Decision Date08 June 1897
Citation41 S.W. 203,139 Mo. 433
PartiesFISCHER v. JOHNSON et al.
CourtMissouri Supreme Court

Barclay, J., dissenting.

In banc.

For opinion in division, see 39 S. W. 785. Transferred to Kansas City court of appeals.

BRACE, J.

This is an action of replevin for the recovery of a crop of wheat and rye cut and shocked on the premises where grown. The verdict and judgment in the circuit court were for the defendants, and the plaintiff appealed to the Kansas City court of appeals, by which court it was transferred to this court on the ground that title to real estate was involved in the case. This is the second appeal by the plaintiff. The first, from a judgment of the circuit court in favor of the defendant, was reversed by the Kansas City court of appeals. 51 Mo. App. 157. The facts in the case are substantially as follows: The defendant M. C. Johnson, being the owner of a farm in Saline county, on the 9th of September, 1889, leased the same to the plaintiff for a term beginning on the 1st day of October, 1889, and ending on the 1st day of March, 1891, and he went into possession of the same under his lease in October, 1889. Afterwards, on the 6th day of December, 1889, the said Johnson executed a deed of trust, with power of sale, conveying the said farm to one McPherrin, trustee, to secure the payment of a note for $1,386 to one Thompson. Afterwards, in the fall of 1890, the plaintiff, for a valuable consideration, sold to the said Johnson the privilege of sowing a part of the premises in wheat and rye, which were then sown by his co-defendants, Isaac L. Thornton and Drury W. Johnson, under a written contract with him dated August 28, 1890. The crop of grain in controversy is the product of this sowing. Afterwards, in January, 1891, the premises were sold under the deed of trust, and one Colton became the purchaser thereof, and received a trustee's deed therefor. Afterwards, on the 24th of January, 1891, the said Colton executed a lease of the premises to the plaintiff, who was in possession of the same under his lease from M. C. Johnson, for a term beginning on that day, and ending on the 28th of February, 1892. Afterwards, in harvest time, the defendants cut and shocked the crop in controversy, and while the same was still standing on the premises the plaintiff, on the 13th of July, 1891, commenced this action, in which the crop was delivered to him. The answer of the defendant M. C. Johnson was a general denial, and a disclaimer of any interest in the property. The answer of Thornton and Drury Johnson was a general denial, and claim of right to the property taken. The trial resulted in a judgment for the defendants, which, on appeal taken as aforesaid to the Kansas City court of appeals, was reversed; the court, in its opinion, treating the defendants as tenants of the mortgagor, and having no greater right as against the plaintiff, held that the title to the crop growing on the premises passed to the purchaser at the trustee's sale, as against the mortgagor, and treating the plaintiff as standing in the shoes of the purchaser at such sale, and having the same right to the crop as such purchaser, held that he was entitled to the same; holding, further, however, "that, as the plaintiff's title to the grain is based on the deed of trust, such title may be defeated by showing such deed of trust was obtained in a manner rendering it a nullity. And this may be done under a general denial." The case, being remanded to the circuit court, was retried on the same pleadings. The defendants on this trial introducing evidence tending to prove that the deed of trust was without consideration and procured by fraud, and that defendants Thornton and Drury Johnson, under their contract with M. C. Johnson, and with the consent of the plaintiff, took possession of the land on which the wheat and rye were grown in the fall of 1890, plowed the land, and sowed the seed from which the crop was grown, and that such possession continued for the purposes of the crop until after they had cut and shocked the grain on the premises, and the same was thereafter taken from them under the writ in this case. Upon this evidence the trial court gave several instructions, two of those for the defendants, in substance, authorizing a verdict for the defendant if the jury found from the evidence that the deed of trust was procured by Colton from M. C. Johnson by fraud and without any consideration; and, among others, the following: "Although the jury may believe from the evidence that the deed of trust under which Colton purchased, and his title to said land was valid under said sale, and that he afterwards rented all of said land to plaintiff, Fischer, yet if they further believe from the evidence that before the sale under said deed of trust, and the renting of Fischer from Colton, the defendants Isaac Thornton and Drury Johnson were given possession of that part of the land on which said rye and wheat were grown, and they sowed said rye and wheat thereon, and the same were growing thereon at the time of the sale to Colton, and that the said Isaac Thornton and Drury Johnson continued to hold possession of said rye and wheat, and did harvest, cut, and shock the same without any demand made by Fischer to said Thornton or Drury Johnson for the possession of said crops before the same were cut and shocked, then the finding of the jury must be for the defendants Thornton and Drury Johnson for said rye and wheat."

In Hilton v. City of St. Louis, 129 Mo. 391, 31 S. W. 771, Macfarlane, J., speaking for this court, and of its jurisdiction, said: "The constitution does not declare that the jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. We take the provision to mean that the title to real estate must in some way be affected by the judgment to be rendered on the...

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26 cases
  • Ballenger v. Windes
    • United States
    • Missouri Supreme Court
    • April 23, 1936
    ... ...         Above excerpt was quoted approvingly in the later case of Fischer v. Johnson, 139 Mo. 433, 437, 41 S.W. 203 ...         In Schroer v. Brooks (Mo.Sup.) 200 S. W. 1068, we said: "For it is not sufficient to ... ...
  • Hough v. Jasper County Light & Fuel Co.
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    ... ... their real estate, does not control in case at bar ... Graham v. Ketchum, 192 Mo. 27; Vanata v ... Johnson, 170 Mo. 269; Arnold v. Willis, 128 Mo ...          McReynolds & Halliburton for respondents ...          (1) ... Defendant's ... divest this court of jurisdiction over the appeal. [Price ... v. Blankenship, 144 Mo. 203, 45 S.W. 1123; Fischer ... v. Johnson, 139 Mo. 433, 41 S.W. 203; Barber Asphalt ... Paving Co. v. Hazel, 138 Mo. 228; Bruner Granitoid ... Co. v. Klein, 170 Mo. 225, 70 ... ...
  • Stough v. Steelville Electric Light & Power Co.
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    • January 6, 1920
    ... ... v. Bezel, 138 Mo. 228, loc. cit. 230, 39 S. W. 781; May v. Mortgage Trust Co., 138 Mo. 448, loc. cit. 451, 452, 40 S. W. 122; Fischer v. Johnson, 139 Mo. 433, loc. cit. 437, 438, 41 S. W. 203; Heman v. Wade, 141 Mo. 598, loc. cit. 601, 43 S. W. 162; Rothrock v. Lumber Co., 146 Mo ... ...
  • Gibson v. Sharp
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    • Missouri Supreme Court
    • September 13, 1954
    ... ... Fischer v. Johnson, 139 Mo. 433, 437, 41 S.W. 203, 204; Turner v. Morris, 222 Mo. 21, 121 S.W.9 ...         In the following cases, among others, ... ...
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