"We,
the jury, having been instructed to return a special verdict
herein, find the facts to be as follows:
"About
the 8th day of April, 1887, one Leroy Templeton was the
absolute owner of the forty mares in controversy in this
case, and on that day bargained to the defendant Sheets a
one-half interest in said mares, at and for the price of
forty-five dollars for each of said mares, said mares in said
bargain being valued at ninety dollars each.
"By
the terms of said sale said defendant was to have possession
and care and control of said mares, and was to keep the same
until March 1st, 1891.
"Said
Templeton was to furnish pasture for the same until October
1st, 1887, after which the feed for said animals was to be
furnished at an equal expense of said Templeton and said
defendant.
"Said
defendant, from the time of making said bargain, was to look
after and have the control and possession of said mares in
the pasture furnished by said Templeton, up to October 1st,
1887, and was thereafter to continue to feed and take care of
said animals, and to have the possession of the same. Said
Sheets was to pay said Templeton interest at
seven per cent. on the purchase-price of said mares from
October 1st, 1887, and was to have the option to pay said
purchase-money when he saw proper on or before March 1st,
1891. On March 1st, 1891, the interest of said parties in
said mares, and the proceeds thereof, were to be equal, after
accounting to each party for his portion of the expense, and
also after payment to Templeton by the defendant of the
purchase-price for the one-half interest thereof, with
interest, if the same had not been previously paid.
"By
the terms of said bargain, said mares were to be kept
exclusively for breeding purposes, and were not to be worked
or sold, broke or traded by either party prior to March 1st,
1891, except by consent.
"Said
bargain was not in writing.
"Pursuant
to said contract said Templeton, on the same day that it was
made, to wit, about April 8th, 1887, delivered possession of
said mares to said Sheets, who remained in the possession and
care of the same, having the same in a pasture furnished by
said Templeton, in said county, until the 16th day of June,
1887, when said Templeton and said plaintiff, without the
knowledge or consent of said Sheets, took said mares from
said pasture and placed them in a pasture of the
plaintiff's, about half a mile distant from where they
were taken.
"The
possession of said property was taken by said Lowman under a
sale made to him by said Templeton, on the 16th day of June,
1887, on which day said Templeton sold said property to said
Lowman for the sum of thirty-four hundred dollars, to be paid
by said Lowman in six months after said date, which was
evidenced by a promissory note, executed by plaintiff to
Templeton, payable in a bank in this State, which said note
is still held by said Templeton, and is still wholly unpaid.
"Said
Sheets had no notice, knowledge or information of said sale
by Templeton to the plaintiff until after the same was made,
and the possession of said property taken by the plaintiff as aforesaid; nor did he ever afterwards
consent to the same.
"On
the 22d day of June, 1887, said defendant, without objection
or resistance, took said mares from plaintiff's pasture,
where plaintiff had put them, as aforesaid, and put them in
his, said defendant's, own pasture, on Fowler & Van
Natta's farm in said county, the same being about four
miles from the pasture where said animals were when taken by
the plaintiff as aforesaid, and about the same distance from
the plaintiff's said pasture from which they were taken
by the defendant as aforesaid.
"While
said animals were in the possession of the defendant as
aforesaid, said plaintiff, on the 22d day of June, 1887,
before the commencement of this action, demanded said
property of said defendant, but said defendant refused to
deliver him the possession thereof.
"Said
plaintiff on the same day commenced this action, and upon a
writ of replevin herein issued and upon the plaintiff's
undertaking, approved by the sheriff, said sheriff, on said
writ, delivered said property to the plaintiff who, by virtue
of said delivery of possession, has since retained and is now
in the possession of said property.
"Said
property is now of the aggregate value of $ 3,400. At the
same time of making the sale of a half interest in said mares
to said Sheets, said defendant and said Templeton entered
into a bargain whereby said Templeton was to lease to said
Sheets 800 acres of real estate, owned by said Templeton, in
said county, for the term of three years, to commence on the
1st day of March, 1888.
"Said
lands were the north half of each of two adjoining sections
owned by said Templeton, one lying immediately east of the
other, and the southwest quarter of said east section--the
precise location of said lands so leased was well understood
and agreed to by the parties at the time of making said
bargain.
"By
the terms of said bargain said land was to be cultivated in corn, oats, pasture and meadow, as said Sheets
might determine, and as rent for the same said Sheets was to
deliver to said Templeton, on said premises, one-third of the
corn raised thereon in the crib, one-third of the oats in the
bin, and three-fifths of the hay in the stack, and to pay $
2.50 per acre for all the pasture except
thirty acres, for which no charge was to be made.
"Said
Templeton was, before March 1st, 1888, to move a house from a
designated part of said premises to another designated part
thereof, and to put the same in a tenantable condition, at an
expense of not exceeding $ 300.
"At
the same time that Templeton sold a half interest in said
mares, as aforesaid, and at the same time that he leased said
defendant said real estate as aforesaid, said Templeton and
defendant entered into a bargain whereby it was agreed, by
and between them, that such portions of the hay and grain as
should be raised upon said leased premises by said defendant,
as the parties should determine, should be fed to stock,
which stock was to be purchased from year to year by said
parties, with money to be borrowed by them jointly; and to be
taken care of by said defendant on said premises, the expense
of feeding the same to be borne by Templeton and the
defendant equally, and the net profits thereof to be divided
between them equally.
"Said
mares were also to be kept on said leased premises after
March 1st, 1888.
"None
of said bargains were in writing.
"Said
sale of a half interest in said mares, by said Templeton to
said defendant, would not have been made if said Templeton
had not at the same time leased said defendant said real
estate as aforesaid; but said sale of said half interest in
said mares to said defendant and said lease of said real
estate were in nowise dependent upon said other contract, and
would have been made though said other contract had not been
made.
"If,
upon the foregoing facts, the law is with the defendant, then we find for the defendant, that the property
in controversy should be returned to him, or if return
thereof can not be had, that he should have judgment for
one-half the value of the mares described in the complaint.
"Thomas
S. Lamb, Foreman.
"But
if, upon the foregoing facts, the law is with the plaintiff,
then we find for the plaintiff, that he keep and retain
possession of the property in controversy, and that he
recover from the defendant one cent for his damages herein.
"Thomas S. Lamb, Foreman."
