Leidy v. Carson

• Decision Date: 04 December 1905
• Citation: 115 Mo. App. 1,90 S.W. 754
• Parties: LEIDY et al. v. CARSON.
• Court: Missouri Court of Appeals

90 S.W. 754

115 Mo. App. 1

LEIDY et al. v. CARSON.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

TROVER AND CONVERSION—PROPERTY SUBJECT TO.

Where the tenant of a farm, on leaving the state, sold to plaintiffs the right to graze their stock on grass and stalks growing on the farm, plaintiffs to care for the leased premises during the tenant's absence, it did not convert the stalks and grass into real estate, and hence the landlord, in turning out the stock and locking the gates of the premises, was guilty of a conversion of the stalks and grass.

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

Action by John Leidy and another against William Carson. From a judgment for plaintiffs, defendant appeals. Affirmed.

James & Norris and J. A. Sanders, for appellant. K. D. Cross, for respondents.

JOHNSON, J.

Respondents have moved that the judgment herein be affirmed for the reason that the defendant did not except to the action of the court in overruling his motion for a new trial and in arrest of judgment. But the record shows that he did so except. Consequently respondents' motion is overruled.

The plaintiffs commenced this suit before a justice of the peace, where it was tried and appealed to the circuit court upon substantially the following statement: "Plaintiffs for their cause of action state that on the 28th day of November, 1902, they were lawfully possessed of their own property, certain goods and chattels, to wit: Sixty acres of stalks and 50 acres of grass, situated and lying on the William Carson farm [describing it], * * * containing in all 129.80 acres of land to be the same, more or less. Which said goods and chattels were then of the value of $125. That afterwards, to wit, on the 28th day of November, 1903, said goods came into the possession of defendant, who then and there unlawfully converted to his own use and disposed of the same, to plaintiffs' damages in the sum of," etc. The facts were that defendant had leased the premises upon which the stalks and grass had been grown to one H. M. Thomas for the year ending March 1, 1903; that previous to the 28th day of November, 1902, said Thomas had leased a farm in the state of Kansas for the purpose of moving there, and had disposed of most of his personal property, and sold the stalks and grass in controversy to the plaintiffs. He went to the state of Kansas, but left his wife and children in Missouri, to follow him later. He also left some personal property in the house and on the premises, which was to be sent to him afterwards. It was the understanding between Thomas and the plaintiffs that they had the right to consume the stalks and grass on the farm, and that they were to look after and care for the farm, and erect a fence around the house to protect it from live stock. Plaintiffs turned their stock upon the stalks and grass standing on the land, but within a few weeks defendant turned them out, and locked the gate that led into the premises. There was little or no controversy as to the facts, and it is admitted that the property in dispute was of the value of $125. The case was submitted to the court, a jury having been waived, and judgment was rendered for plaintiffs, and defendant appealed.

The defendant contends that "the...