Johnson v. Clem

• Decision Date: 19 April 1884
• Citation: 82 Ky. 84
• Parties: Johnson v. Clem.
• Court: Kentucky Court of Appeals

Page 84

82 Ky. 84

Johnson v. Clem.

Court of Appeals of Kentucky.

April 19, 1884.

APPEAL FROM BOURBON CIRCUIT COURT.

T. N. ALLEN AND Z. GIBBONS FOR APPELLANT.

BRECKINRIDGE & SHELBY FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

This is an action for malicious prosecution by Clem against Johnson, the petition containing two counts for distinct offenses. There was a judgment for the plaintiff and an appeal prosecuted to the superior court. The brother of the plaintiff (appellee) had rented of the appellant, Johnson, a part of his land, to be cultivated in wheat on the shares, and had entered into a writing, evidencing the terms of the contract. The wheat was sown in the fall by the plaintiff's brother, and, by the terms of the agreement, he was to cut it when ready for the reaper.

Johnson had an overseer, or tenant, on the farm at the time invested with the power to control the farm and products, and from his testimony and that of Johnson's (the appellant) Clem sold out his interest in the crop for a certain mule belonging to Johnson, and in this manner divested himself of all further interest in it.

This the Clems deny, and claim that the contract was never abandoned or the interest of the brother in the wheat crop sold to Johnson, or to any one for him. When the wheat ripened Johnson had gone into the field for the purpose of cutting it, sending his cradles in advance to prepare for the reaper. While this was being done, the appellee and his brother entered the field with their reaper for the purpose of cutting the wheat, claiming that the one renting the land had never surrendered the possession or the right to enter for the purpose of securing the crop. A gun was brought along by the party, the appellee being one of the number, and his brother, when told by Johnson to leave the field, declared his purpose to remain, and using such profane language as evinced a purpose to hold the possession by violence if necessary, and the appellee, according to the testimony of Johnson, sustaining his brother in his right to the possession. It is shown that all the parties knew that the appellant had notified the brother of the appellee not to come into the field, and it is manifest that their purpose was to resist any effort by Johnson to remove them.

The right of entry on the part of Clem and his brother depended on the question as to the rescission of the contract, or the sale of Clem's interest under it.

If the Clems had no longer any interest in the wheat they were not only trespassers, but were guilty of a breach of the peace, from their own testimony.

The court told the jury, in the 9th instruction, that, if the contract had been rescinded, then the entry by Clem, and those with him, constituted a trespass, but that such entry, although illegal, unless forcible or violent, was not a breach of the peace, and a mere refusal to leave when requested, unless accompanied by violent demonstrations, or an assault on ...