Lindenbower v. Bentley

• Decision Date: 31 October 1885
• Parties: LINDENBOWER v. BENTLEY, Administrator, Appellant.
• Court: Missouri Supreme Court

86 Mo. 515

LINDENBOWER

v.BENTLEY, Administrator, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

Massey & McAfee for appellant.

Upon the evidence plaintiff was not entitled to recover in this cause. At the time of alleged trespass plaintiff was not in possession of the premises. John C. Crenshaw was at that time owner of said premises, was entitled to possession of same, and Majors, now his tenant, was in actual possession of same, and in actual possession still at time of commencement of this suit. An action for trespass against real estate will not lie, unless plaintiff be in possession at the time of the alleged trespass; nor if defendant is in possession, claiming same under paramount title at the time of commencement of the suit. Reed v. Price, 30 Mo. 442; Cochran v. Whitesides, 34 Mo. 417; Brown v. Carter, 52 Mo. 46; More v. Perry, 61 Mo. 174; Frost v. Duncan, 19 Bar. 560; Demot v. Hagerman, 8 Cowen, 220; 9 N. Y. Law Reports, 367. John C. Crenshaw, by virtue of his deed from Abbott, trustee, was entitled to the possession in March, 1881, and was entitled to the growing crops on same, as against the plaintiff. 1 Washburn on Real Property, 124; Lane v. King, 8 Wendell, 584; Harris v. Frink, 49 N. Y. 24; 10 Am. Rep., 323, 324; Rowell v. Klein, 44 Ind. 290; 15 Am. Rep. 235.

Wm. C. Price and Henry C. Young for respondent.

(1) The respondent in this case occupies the same relation that a lessee under an ordinary vendor would occupy. She held under the legal representative of the mortgagee after condition broken. Taking any view of the case, the most Crenshaw, the purchaser, could have done, was to have demanded the rent and exhibited his deed at the time he made such demand, and if respondent had then refused to pay rent he could have proceeded as provided by the sections of the statute referred to. Gray v. Rogers, 30 Mo. 248; Walker v. Harper, 33 Mo. 592; Pentz v. Kuester, 41 Mo. 447. (2) Respondent did not rent the land to Majors, but they were joint croppers or tenants in common in the crops, and the possession of the land upon which the wheat was grown was in respondent at the time of the alleged trespass. Wash. on Real Prop., side p. 365. Letting land upon shares, if for a single crop, is no lease of the land, and the owner alone must bring trespass for breaking the close. The same is held to be the law in the following cases: Taylor v. Bradley, 39 N. Y. 129; De Mott v. Hagerman, 8 Cow. 221; Caswell v. Districh, 15 Wend. 379; Putnam v. Wise, 1 Hill, 235; Herskell v. Bushnell, 9 Am. Rep. 299; Bradish v. Schenck, 8 Johns. 151, Donnell v. Harshe, 67 Mo. 173; s. c., 70 Mo. 149; Bernal v. Hovions, 17 Cal. 546. (3) If Majors had been the tenant of respondent, he could not have attorned to appellant. The attornment of a tenant to a stranger is void and does not affect the possession of his landlord. Schultz v. Arnot, 33 Mo. 172. But Majors was not the tenant of respondent under the law and facts, and respondent was in possession at the time of the alleged trespass.

NORTON, J.

The petition in this case charges that defendant wrongfully entered upon a tract of land, of which plaintiff was in possession, and on which was standing a crop of wheat belonging to plaintiff, and cut and carried the same away to her damage, in the sum of four hundred dollars. On the trial plaintiff obtained judgment, from which defendant has appealed, and assigns for error the refusal of the court to instruct the jury that on the evidence plaintiff was not entitled to recover.

The following statement embodies the facts developed by the evidence:

In 1868 Goza & Quilling were the owners of the land upon which said alleged trespass was committed. At that time they conveyed the same to James Abbott, as trustee, to secure an indebtedness to H. J. Lindenbower, deceased, then in full life. Lindenbower afterwards died, and S. H. Julian became administrator de bonis non of his estate. Plaintiff, in 1880, was in possession of said premises. She got possession of the same from said Julian, administrator. In the summer, or fall, of 1880, she rented the land upon which this wheat was grown, to one Payton Majors; Majors was to put the land in wheat on shares; plaintiff was to furnish the seed wheat, and a team to break the land with; Majors was to break the land, sow the wheat, and the crop, when harvested, was to be divided equally between them. This agreement was carried out, except as to the harvesting and dividing the grain. Plaintiff furnished the team and seed wheat. Majors broke the land and sowed the wheat. On the nineteenth of March, 1881, at the request of Julian, administrator of the estate of Lindenbower, Abbott, trustee, sold said land under and by virtue of said trust deed of Goza & Quilling, and John C. Crenshaw became the purchaser at said sale, paid the purchase money, and received from the trustee, Abbott, a deed therefor.

And afterwards, in May, 1881, defendant, as the agent of John C. Crenshaw, rented the land to said Payton Majors for a period ending July 1, 1881, Majors agreeing to rent of Crenshaw and to pay him as rent the one-half of the wheat crop growing thereon, the entire crop to be harvested and threshed by Majors at his own expense, and the one-half thereof to be delivered to Crenshaw at the thresher. Majors harvested and threshed said crop, and said L. A. D. Crenshaw, as agent of John C. Crenshaw, received at the thresher and took away said one-half of the wheat. Majors, by the further terms of said lease, delivered possession of said premises to said Crenshaw at the time he was required by said lease to do. At the time the land...