Kester v. Amon

• Citation: 261 P. 288,81 Mont. 1
• Decision Date: 10 October 1927
• Docket Number: 6150.
• Parties: KESTER v. AMON et al.
• Court: United States State Supreme Court of Montana

261 P. 288

81 Mont. 1

KESTER
v.
AMON et al.

No. 6150.

Supreme Court of Montana

October 10, 1927

Appeal from District Court, Pondera County; John J. Greene, Judge.

Action by C. H. Kester against M. A. Amon and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Myers and Galen, JJ., dissenting. [261 P. 289]

Art Jardine, of Great Falls, for appellant.

Arnot & Doyle, of Conrad, for respondents.

MATTHEWS, J.

On motion for a rehearing, the opinion heretofore promulgated is withdrawn, and the following opinion substituted therefor:

In August, 1925, C. H. Kester commenced an action against M. A. Amon, John Bakken, and Louis Larson, and in his complaint alleged that the defendants had wrongfully taken from his possession 229 bushels of wheat. He prayed for the return of the wheat or a judgment for the value thereof. Issue being joined, the cause was submitted to the court, sitting without a jury, upon an agreed statement of facts, supplemented by oral testimony on two questions in dispute: (a) As to whether the wheat was ripe and ready to cut at the time it was severed from the land; and (b) as to whether defendant Bakken was in possession of the premises from which the wheat was cut up to the time of the removal of the wheat therefrom. The agreed statement establishes the following facts:

In 1916, defendant Amon and wife mortgaged 320 acres of land in Pondera county as security for the repayment of a loan of $2,000. The mortgage and note thereby secured were assigned to one Antrim, who, on the failure of Amon to pay the note, commenced foreclosure proceedings in the latter part of the year 1924, which proceedings resulted in the entry of a default judgment and decree against Amon and wife, and an order of sale of the premises described, on February 17, 1925. The decree provided that:

"The purchaser or purchasers, at such sale, be let into possession of said premises, and any of the parties to this action who may be in possession of said premises or any part thereof, and any persons who, since the commencement of this action, have come into possession under them, * * * shall deliver possession thereof to the purchaser or purchasers on production of the said sheriff's certificate of sale for such premises, or any part thereof." [261 P. 290] On March 9, 1925, Amon executed to defendant Bakken a written lease of the premises "for the year 1925," providing that Bakken should furnish all seed labor, and machinery for working the land, and as rental deliver one-fourth of all crops to Amon in an elevator at either Pendroy or Valier. The lease was duly recorded, and Bakken took possession of the premises and planted thereon a crop of wheat. He remained in "actual possession" until August 5, 1925, "excepting in so far as such possession may have been changed or affected by the acts and demands" of Kester and his testimony given on the hearing on application for a writ of assistance, hereinafter referred to.

In obedience to the order of sale, the sheriff of Pondera county regularly sold 120 acres of the mortgaged premises to Kester on April 28, 1925, and issued to the purchaser a sheriff's certificate of sale. At the time of the sale there was growing on the tract so sold to Kester a stand of wheat, which thereafter yielded approximately 1,000 bushels of grain. On April 29th, the day following his purchase, Kester went upon the premises and there served upon Amon and wife and upon Bakken written notice of his purchase, produced his sheriff's certificate of sale, and demanded immediate possession of the premises. This demand was refused. Thereafter, on May 13, 1925, Kester applied to the district court for a writ of assistance, and served notice thereof upon Amon and wife and upon Bakken. Amon and wife appeared and contested the issuance of the writ, but Bakken made no appearance, although he testified on the hearing in favor of Amon. After hearing the evidence the district court denied the application, and thereafter Kester applied to this court for a writ of supervisory control, to compel the district court to vacate its order and issue the writ of assistance. After a hearing this court issued the writ applied for, which was served upon the district judge on July 30th, who, on August 3d, complied therewith by vacating his former order and directing the issuance of a writ of assistance to immediately put Kester in possession of the premises. This writ was issued by the clerk of the court, placed in the hands of the sheriff, and by him served upon Amon, his wife, and Bakken on August 4th, at which time the sheriff took possession of the premises and placed an agent in charge, to hold possession for Kester, but orally agreed that the Amons and Bakken might occupy the residence on the premises until noon of August 5, 1925.

During the period beginning in the late afternoon of August 3d and ending in the early forenoon of August 4th, Bakken cut 30 acres of the wheat standing on the lands purchased by Kester, and thereafter removed the bundles, from which the 229 bushels of grain were threshed, from the land. August 5th Kester demanded of Bakken a return of the bundles, which demand was refused, and Bakken was ejected from the land by the sheriff. The wheat in controversy has a value of $292.12.

On the trial, with reference to the first disputed fact, a number of witnesses, whose qualifications were admitted, testified that they saw the standing wheat at the time it was cut, and that it was then ready for cutting and harvest; that, while it was cut earlier than most wheat in the neighborhood, it was also planted earlier; that wheat should be cut before fully ripe, and allowed to ripen on the ground; that most of the wheat in the neighborhood was cut approximately two weeks later with a "header," while this wheat was cut with a binder, and that wheat should be cut with a binder two weeks earlier than it should be cut with a header. These witnesses also testified that the bundles laid out in the field for a considerable period of time before threshing, during which time they were subjected to the effects of heavy storms; that such conditions would affect the "looks and color" of the wheat; that the season of 1925 was a dry season, which would affect the size of the kernels and cause some of them to shrivel.

Bakken testified that he examined the grain after it was threshed, and found that it was cut when it was ripe; that the grain had a ripe color; "it was brown, no green kernels," with a few shriveled kernels; that it was graded as No. 2 and No. 3. A wheat buyer testified that wheat cut green would have a greenish cast, and that, in his opinion, wheat cut green, especially if it laid out in a storm, would not grade either No. 2 or No. 3 according to federal grades.

In conflict with the foregoing testimony, a witness testified that the grain was delivered at the Valier elevator, and that he took samples...