Johnson v. Walker
| Decision Date | 05 April 1888 |
| Citation | 37 N.W. 639,23 Neb. 736 |
| Parties | JOHN JOHNSON AND WILLIAM T. JOHNSON, PLAINTIFFS IN ERROR, v. JAMES A. WALKER, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass county. Tried below before CHAPMAN, J.
AFFIRMED.
Crites & Ramsey and J. B. Strode, for plaintiffs in error, cited Civil Code, Sec. 484. Davidson v. Waldron, 31 Ill 121. Chittenden v. Rogers, 42 Id., 100. Wood v Augustine, 61 Mo. 46. Cresson v. Stout, 17 Johns., 116. Lininger v. Raymond, 12 Neb. 19. Minor v. Herriford, 25 Ill. 344.
Beeson & Sullivan, for defendant in error, cited: Herman Chattel Mortgages, 68. Mitchell v. Badgett, 33 Ark. 387. Freeman Ex., Sec. 341. Hunt v. Loucks, 38 Cal. 372. Buchanan v. Tracey, 45 Mo. 437. 1 Bouvier, 34. Farrington v. Sinclair, 15 Johns., 428.
This was an action in the district court of Cass county, brought by the plaintiff against the defendants, for the conversion of forty acres of standing corn grown upon the north-west quarter of the south-west quarter of section sixteen in township eleven north of range thirteen east, in said county, of the value of $ 200. The answer of the defendants was a general denial. There was a trial to a jury, with a finding and judgment for the plaintiff against both of the defendants, in the sum of $ 94.
The defendants bring the cause to this court on error, and assign the following errors:
First error formal.
2. The verdict is not sustained by sufficient evidence.
3. The verdict is contrary to law.
4. The court erred in admitting in evidence the record of the sheriff's return of the pretended levy upon and sale of the corn in controversy.
5. The court erred in admitting in evidence the return of the sheriff of the pretended levy upon and sale of the corn in controversy.
6. The court erred in refusing to give the first, fifth, and eighth instructions asked in behalf of defendants.
7. The court erred in giving the first, second, and third paragraphs of instructions asked by plaintiff.
8. The court erred in giving the fourth instruction on its own motion.
9. Errors of law occurring at the trial and excepted to.
10. The verdict is for the plaintiff, when, under the law and the evidence, it should have been for the defendants.
On the trial the plaintiff offered the page of the docket of the county judge containing the record of a judgment in favor of James A. Walker v. Wm. T. Johnson, having first identified the said docket by the testimony of C. Russell, county judge. Also the page of said docket showing the returns of an execution issued on said judgment. The defendants objected to the admission of the same in evidence, as incompetent, immaterial, and not the best evidence, the return of the execution and the return of the sale not showing that the notices of the sale were published as required by law; and for the further reasons that the return of the sale does not show that the property levied on was in view at the place of sale, and does not show that the goods in question were sold to the highest bidder. Which objections were overruled and the evidence admitted.
The plaintiff then offered in evidence an execution issued by Judge Russell, county judge of Cass county, on the 12th day of September, 1885, after having identified it by the testimony of said county judge. The defendants objected to the introduction of the said paper in evidence, as incompetent, immaterial, and irrelevant. And for the further reason that the time of the receipt of the writ is not endorsed upon the same; and for the further reason that the advertisement of the sale of the said property was not made in pursuance of law, not having been published in some newspaper; and for the further reason that the return does not show that the property was sold, when it was, or who was present at the place of sale, and does not show that the property was sold to the highest bidder, which objection was overruled and the evidence admitted.
Without referring to the questions raised by defendants as to the admissibility of the record evidence as above set out, or the effect thereof, which will be hereafter considered, but taking up the points in the order presented, I will examine the evidence upon the admissibility of which no point is presented.
It appears that the defendant, John Johnson, was and still is the owner, by purchase from the state, of the land upon which the corn, for the conversion of which suit was brought, was grown; that he placed his son, the defendant, Wm. T. Johnson, in possession of said land, upon the oral agreement between them that the proceeds of the cultivation thereof, after sufficient thereof being applied to the purpose of paying the cost and necessary expenses of such cultivation, and the improvement of said land, and the support and maintenance of said Wm. T. and his family, should be the property of said John Johnson. It further appears that there were certain annual payments of interest upon the purchase of said land necessary to be made to the state, for which the said John Johnson was bound, but which the said Wm. T. became and was obligated to pay, out of the proceeds of such land and the cultivation thereof; also that the said Wm. T. was largely indebted to said John for advancements made to him at sundry times and in various ways, at the date of the commencement of the occupation and cultivation of said land upon the terms above stated. It also appears that, at the date of the transactions involved in the case, John Johnson was bound as security for Wm. T. Johnson on notes in bank for large sums of money.
It appears in evidence that, on the 24th day of July, 1884, before the Hon. C. Russell, county judge of Cass county, the plaintiff, James A. Walker, by the consideration of said county judge, recovered a judgment against the said Wm. T. Johnson in an action then and there pending for the sum of one hundred eleven dollars and twenty cents, and one dollar and forty cents, costs of suit, total, one hundred twelve dollars and forty (sic) cents; that on the 12th day of September, 1885, the said county judge issued an execution on the said judgment, and placed it in the hands of J. C. Eikenbary, sheriff of said county; that on the 14th day of September, 1885, the said sheriff levied the said execution on forty acres of standing corn in the field, described as growing on the north-west quarter of the south-west quarter of section 16, in township 11 north, of range 13 east of the 6th P. M., in Cass county. Also, that on the 26th day of September, 1885, at the hour of 2 o'clock P.M., of said day, the said sheriff sold the said corn, by virtue of said execution and levy, at public vendue, to said plaintiff. It also appears from the evidence that afterwards the said corn was gathered by the defendants, or under and by their authority, and converted to their use. The value of the corn was sufficiently proven to an amount, sufficient as to that point, to justify the verdict.
The question that arises under this head of our inquiry is, whether the defendant, John Johnson, was possessed of a property in, and title to, the corn, that would shield it from an execution against the property of Wm. T. Johnson. It was in the exclusive possession of the latter, and was the product of his sole labor. On the other hand, the inchoate title to the land that produced it was in the former, and there was an agreement, or understanding, between the two, that a possible remainder of the product of such land should be the property of the former. I am unable to make any application of the further claim on the part of the defendants, arising out of the consideration of the money advanced by the father to the son, or the contingent liabilities which he had assumed and was still bound for in his behalf.
It may be admitted as a principle of law that the owner of the soil will be presumed, prima facie, to be the owner of the growing crops standing upon it. But this must be taken in connection with another and controlling presumption, to-wit that the person in possession is the owner of the soil, as well as of the growing crops thereon. Considering these two presumptions together, and applying them to the case at bar, had no one been in the actual possession of the farm on which the corn was raised, at the time of the levy, then the owner of the soil, even by the inchoate title of time purchaser from the state, would be presumed to be the owner; but with the defendant, Wm. T. Johnson, in the exclusive possession of the farm, he is presumed, prima facie, to be the owner of both farm and crops, and this presumption, as to the crops, continues after that as to the ownership of the soil is overturned by evidence of title in another. And it is strengthened so as to no longer be a mere presumption, when it is proved that they were produced by the labor of the person in possession. Was the understanding or agreement between the defendants sufficient to vest the ownership of the future crops to be raised on the farm by Wm. T. Johnson, or the possible remainder of them over and above "a support for himself and family, and to pay hired labor to help him raise the crop," in the elder Johnson? If so, then it was a sale; and being a sale of personal property without an immediate and continued delivery of possession to the purchaser, it was void as to creditors. But this agreement was made before this corn was ...
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