Foss v. Marr

• Decision Date: 15 May 1894
• Citation: 40 Neb. 559,59 N.W. 122
• Parties: FOSS v. MARR ET AL.
• Court: Nebraska Supreme Court

40 Neb. 559

59 N.W. 122

FOSS

v.MARR ET AL.

Supreme Court of Nebraska.

May 15, 1894.

Syllabus by the Court.

1. An action of replevin was commenced in the district court and the property taken under the writ, and delivered to the plaintiff. The parties to the action waived a jury, and submitted the case to the court for decision upon a stipulated statement of the facts. The court made a general finding for defendants, containing no valuation of the property, and rendered a judgment for money only, based upon such finding. Held, that both finding and judgment were erroneous to such an extent as to call for a reversal of the case.

2. A matured crop of corn standing ungathered upon land sold at judicial sale, which was not considered or taken into account by the appraisers in arriving at the value of the premises sold, did not pass to the purchaser at the judicial sale, but remained the property of the mortgagor, who had planted and cultivated it.

Error to district court, Hitchcock county; Welty, Judge.

Action by Fayette I. Foss against Lorenzo Marr and others. Judgment for defendants. Plaintiff brings error. Reversed.W. H. Morris, for plaintiff in error.

House & Blackledge, for defendants in error.

HARRISON, J.

November 4, 1891. F. I. Foss commenced an action of replevin in the district court of Hitchcock county, Neb., to recover, as is stated in the petition, “all corn now standing and growing, and all corn now in crib or lying in piles, upon the following described real estate, to wit: The southeast quarter of section four (4), and the northwest quarter and southeast quarter, and the north half of the southwest quarter, of section three (3), all in township three (3) north, of range thirty-one (31) west of the sixth P. M., in Hitchcock county, Nebraska, of the value of $800.” Writ was issued, the property taken, and bond given, and the property was delivered to plaintiff. Issue being duly joined in the case, a jury was waived, and a stipulated statement of the facts filed, and the case submitted to the judge of the court for decision and judgment. The stipulation of submission is as follows: “It is hereby stipulated by and between the parties that should the court desire to take this cause under advisement, that the bill of exceptions herein shall be signed, and the motion for new trial by the parties filed herein shall be taken and deemed as filed of this term. And the decision of the court, when rendered, shall be decreed as rendered of this term, and that the exceptions of the parties hereto shall be entered, and that all the time that would be to each party, if said judgment was rendered at this term, shall be saved to the several parties herein, and all things done within the time required by law shall be deemed and filed as if done at this term.” The plaintiff's motion for a new trial was afterwards overruled, as appears by the record, and judgment rendered as follows: “March 23, 1892, trial to the court upon the petition, answer, and the stipulation of the parties to the action. The court finds for the defendants. It is therefore considered by the court that the defendants recover from the plaintiff the sum of three hundred and twenty-five dollars.” The plaintiff brings the case to this court by petition in error, for the purpose of reviewing the decision and judgment of the lower court.

It will be better here to give a statement of some facts regarding prior actions and transactions by and between some of the parties to this suit, which led up to and finally culminated in this action. Lorenzo and Rebecca Marr, of defendants, were husband and wife, and in 1888 Lorenzo was the owner of the lands hereinbefore described, and he and his wife borrowed some $3,300 of the Massachusetts Mutual Life Insurance Company, and gave a mortgage on the land to secure the note evidencing the loan, and executed and delivered to Dawes & Foss, a firm of which plaintiff was a member, a second mortgage on the same lands for the sum of $700. Default was made in the payment of this second mortgage, and proceedings were commenced to foreclose it. A decree was rendered November 11, 1889. The decree was stayed by defendants' request for the statutory period; then order of sale issued, and was delivered to the sheriff, of date October 2, 1890. February 2, 1891, the real estate was sold subject to the mortgage of the life insurance company, and tax liens, the plaintiff herein being the purchaser. September 21, 1891, the sale was duly confirmed, and on October 20, 1891, the sheriff made and delivered to F. I. Foss, the purchaser, a deed for the premises, and, in obedience to an order of the court, put him in possession of the lands. During the year 1891, and after the sale, which was of date February 2, 1891, Lorenzo Marr cultivated the farming lands, and planted thereon wheat, oats, flax, and corn, and gathered of these crops all the wheat, oats, and flax, and a portion of the corn; that, when the sale was confirmed, there was standing in the field, matured, but ungathered and unsevered from the soil, some corn, being the same corn in controversy in this action, which was gathered by defendants after the confirmation of the sale and possession of the lands by plaintiff, defendants then entering and going upon the premises for such purpose.

The first assignment of error which is argued by counsel for plaintiff in error is that the finding of the court, and its judgment entered thereon, are contrary to law. This is an action of replevin, and the record shows that the property in controversy was taken under the writ of replevin, and delivered to plaintiff. Where such a state of facts exists in an action, and the jury or court finds for defendant, as did the court in this case, and renders judgment, it must in its finding assess the value of the property, or, if the defendants' interest is special, the value of such interest, and the judgment based upon such verdict or finding must be in the alternative, for the return of the property, or its value in case a return cannot be had. Sections 190, 191, and 191a of our Code of Civil Procedure, applicable to finding or verdict and judgment for defendant in a suit of replevin, are as follows: “Sec. 190. If the property has been delivered to the plaintiff and judgment be rendered against him on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then and in either case they shall assess such damages for the defendant as are right and proper; for which with costs of suit, the court shall render judgment for the defendant. Sec. 191. In all cases where the property has been delivered to the plaintiff, where the jury shall find upon issue joined, for the defendant, they shall also find whether the defendant had the right of property, or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which with costs of suit the court shall render judgment for the defendant. Sec. 191a. The judgment in the cases mentioned in sections one hundred and ninety and one hundred and ninety-one, and in section one thousand and forty-one of said Code, shall be for a return of the property, or the value thereof in case a return cannot be had, or the value of the possession of the same and for damages for withholding said property, and costs of suit.” It has been held, referring to section 191a, in Manker v. Sine, 35 Neb. 746, 53 N. W. 734: “In an action of replevin, where the property has been delivered to the plaintiff, in case a verdict is returned in favor of the defendant, the judgment must be in the alternative, for a return of the property, or the value thereof, in case a return cannot be had, or the value of the...