Fischer v. Johnson
| Decision Date | 08 June 1897 |
| Citation | 41 S.W. 203,139 Mo. 433 |
| Parties | Fischer, Appellant, v. Johnson et al |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Transferred to Kansas city court of appeals.
E. J Sherlock, P. C. Phillips, and Boyd & Murrell for appellant.
L. W Scott, James Cooney, and W. D. Bush for respondents.
OPINION
In Banc.
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 was 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 ninth of September, 1889, leased the same to the plaintiff for a term beginning on the first day of October, 1889, and ending on the first day of March, 1891, and he went into possession of the same under his lease in October, 1889. Afterward, on the sixth 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. Afterward, 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 codefendants, 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. Afterward, 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. Afterward, on the twenty-fourth 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 twenty-eighth of February, 1892. Afterward, 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 thirteenth 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 was 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 afterward 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 was 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. 389, 31 S.W. 771, Macfarlane, J., speaking for this court and of its jurisdiction, said:
To this list might be added the earlier cases of Corrigan v. Morris, 97 Mo. 174, 10 S.W. 880; Dunn v. Miller, 96 Mo. 324, 9 S.W. 640; State ex rel v. Court of Appeals, 67 Mo. 199, and perhaps others, as well as the recent case of Barber Asphalt Paving Co. v. Hezel, 138 Mo. 228, 39 S.W. 781.
The action of replevin lies only for the recovery of "specific personal property." R. S. 1889, sec 7479. It is well settled that while title to real estate may be inquired into in such action for the purpose of determining the title to personal chattels, it can not be made the means of determining the title to real estate. Wells on Replevin, secs. 58, 79, et seq. A crop...
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