Hayward v. Poindexter
| Citation | 229 S.W. 256,206 Mo.App. 398 |
| Parties | H. H. HAYWARD, Appellant, A. W. POINDEXTER, Respondent |
| Decision Date | 25 March 1921 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Dade County Circuit Court.--Hon. B. G. Thurman, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
S. A Payne and O. E. Gorman for appellant.
Annual crops, so partake of the realty that they pass with a grant of the land unless they are expressly reserved, and a warranty deed carries with it a crop of standing corn. McIlvaine v. Harris, 20 Mo. 457; Cantrell v Crane, 161 Mo.App. 308; Farris v. Hamilton, 144 Mo.App. 177; Tillman v. Bungenstock, 185 Mo.App. 68; Hill v. Brothers, 217 S.W. 581.
William B. Skinner for respondent.
(1) It is the duty of courts to construe and declare the legal effect of written contracts. Oehler v. Fruit Co., 162 Mo.App. 446; Hahn v. Cotton, 136 Mo. 216. (2) A written contract should be read in the light of surrounding facts and circumstances, in order the more fully to understand and explain the intention of the parties, not to contradict and vary it, but to ascertain the real meaning of the language used in it. Laclede Construction Co. v. Tie Co., 185 Mo. 62; Carter v. Foster, 145 Mo. 392; McDaniel v. Railroad Co., 165 Mo.App. 690; Power Co. v. Independence, 188 Mo.App. 159-160. (3) The expression in a contract of one or more things of a class implies the exclusion of all not expressed, although all would have been implied had none been expressed. Expressio unius est exclusio alterius. 13 Corpus Juris, page 537 paragraph 500; Miller v. Wagonhauser, 18 Mo.App. 11; Meyers v. Wood, 173 Mo.App. 564; County of Johnson v. Wood, 84 Mo. 489. (4) "There is a general rule of construction applicable to writings, constitutions, statutes, contracts and charters public or private and even to ordinary conversations, that general and unlimited terms are restrained and limited by particular recitals when used in connection with them." Everett v. Marston, 186 Mo. 604; Dart v. Bogley, 110 Mo. 54; Miller v. Wagenhauser, 18 Mo.App. 14. (5) Courts will take judicial notice within their territorial jurisdiction of the season of the year in which such cereals as corn, wheat and oats usually mature and are harvested. Manufacturing Co. v. Cunningham, 73 Mo.App. 379. (6) Where the contract embraces other undertakings in addition to the conveyance of real estate, the contract is not to be classed as a real estate undertaking and the delivery of the deed cannot affect the validity of the original contract nor prevent the execution of other executory acts of equal dignity. Wilson v. Wilson, 115 Mo.App. 641; Davis v. Cramer, 188 Mo.App. 718. (7) It is now well established, both in England and in this country, that annual crops, crops raised by yearly labor and cultivation, or fructus industriales, are to be regarded as personal chattels, independent of and distinct from the land, capable of being sold by oral contract, and this without regard to whether the crops are growing, or having matured, have ceased to derive any nutriment from the ground. Turner v. Morris, 142 Mo.App. 60; Grath v. Caldwell, 72 Mo. 627; Davis v. Cramer, 188 Mo. App 722; Lead Co. v. White, 106 Mo.App. 222; Stafford v. Spratt, 93 Mo.App. 631. (8) While the rule is that growing crops are a part of the freehold and pass by deed with the land, the rule does not apply where a reservation of possession in favor of a tenant is made and grantee does not get possession of land until after maturity of crop. Farris v. Hamilton, 144 Mo. 177; Davis v. Cramer, 188 Mo.App. 722. (9) A party in possession of land at the time crops are planted and until they are matured and severed has the right thereto against one who in the meantime has acquired the legal title to the land, but not the possession thereof. Edwards v. Eveler, 84 Mo.App. 405.
This suit grows out of a sale of some land and personal property, the plaintiff being the vendee and the defendant the vendor in such sale. There were several counts in the petition, all of which have been disposed of and are not before us for review except one relating to a claim for damages for $ 2200, wherein it is alleged that the plaintiff was the owner of certain land and a growing crop of corn thereon on the 11th day of October, 1917, and that while such owner the defendant, wrongfully and without the consent and against the will of said plaintiff, harvested said corn crop and appropriated the same to his use to plaintiff's damage. The trial court sustained a demurrer to the evidence as to this count, the action of which is assigned as error.
The contract entered into between the parties is as follows:
"This contract made and entered into on this 10th day of October, A. D. 1917, by and between H. H. Hayward of Greenfield, Missouri, party of the first part, and A. W. Poindexter of Everton, Missouri, party of the second part, to-wit:
The parties hereto have this day agreed between each other to sell and exchange certain property here within described on the following terms and conditions set out.
First party has this day sold and conveyed to second party and agrees to give perfect abstract, title and warranty deed to Lots 1, 2, in Block 5, in original plat of Greenfield, Dade County, Mo., known as the Washington Hotel property, together with all personal property therein and one Overland car No. 75 Model, all belonging to said first party except one piano and one mattress.
First party is to fulfill contract to this date with tenant in hotel and second party to fulfill same from this date on, which rent is to be $ 60 sixty dollars per month instead of $ 50 fifty dollars per month. The above described property is to be conveyed subject to two incumbrances, one for $ 5000 to Martha A. McGee due Feb. 25, 1920, at 7 per cent. interest, and one for $ 3000 to W. O. Russell at 5 per cent. interest due Feb. 23, 1920, which second party agrees to pay.
Second party has this day sold and conveyed to the first party 270 acres of land known as the Holman farm located in Section 5, of Township 31 of Range 25, of Dade County, Mo. subject to an incumbrance of $ 5500 at 7 per cent. interest due October 18, 1920, in favor of the Walton Trust Company, second party furnishes perfect abstract title and warranty died together with two mules, John and Pete, three cows, two calves on farm, one disc harrow, one steel harrow, two riding cultivators, one heating stove and low wheel wagon on other farm, one buggy, one post mall and crowbar, one strawstack and 108 shocks of fodder, all ensilage two turning plows, one riding plow, one set of wagon harness.
First party is to give second party mortage back on farm for $ 2500 due Feb. 23, 1920, with interest at 6 1/2 per cent. payable annually.
Each party is to pay all taxes due in 1917 on the above described properties and each party is to pay taxes on his own property hereafter.
Second party is to fulfill contract with tenant on farm to this date and the first party hereafter.
Each party is to give possession of property herein described according to this contract on the 11th day of October, 1917.
This contract is to be made in triplicate form, one copy is to be held by H. H. Hayward, one copy by A. W. Poindexter, and one copy is to remain in the bank of Everton, Mo., until completion of deal between said above mentioned parties.
The deed is to be held in escrow in the Bank of Everton until the above contract is fulfilled."
A general warranty deed was made to the land described in the foregoing contract on the 11th day of October, 1917, describing the lands conveyed and in no way excepting or reserving any rights concerning any growing or unsevered crops on the land. The evidence shows that on this day there was standing, unsevered, a field of corn. The farm was in the actual possession of a tenant to whom the defendant here had rented the place with an agreement as to rent that defendant was to have one-half of the corn raised on the place. Several weeks after this contract had been entered into and the trade made, and the corn gathered off of the stalks by the tenant, the defendant went to the farm and hauled his part away. The evidence also shows that the defendant had purchased the tenant's part of the crop. There is no controversy here concerning the rights as to the tenant's part of the crop, but the real controversy is to whom, under the contract and warranty deed which were made on the same day, does the rent corn belong. It is the contention of appellant that that part of the rent corn which was on the stalk and unsevered on the land on October 11, 1917, when the contract for the sale of the land and certain personal property was entered into and the warranty deed was executed, became his property, while the respondent contends that this rent corn claimed by the plaintiff was a matured crop, that it was personal property that did not pass under the warranty deed, and that all of the personal property intended under their agreement to pass was enumerated and set forth in the contract hereinbefore set out. It is further urged by respondent in oral argument that the corn being in the possession of the tenant at the time this contract and warranty deed were made, and not in the possession of the vendor, nor coming into the actual possession of the vendee, the same tenant continuing under the vendee by the terms of the contract, was not such a crop as would pass by a general warranty deed to the land.
The views of the trial court are set forth in the abstract before us, in which he, in deciding to sustain the demurrer to this count of plaintiff's petition, says:
"Gentlemen the view I take of this case, my idea about it...
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