Manti City Sav. Bank v. Peterson

• Citation: 33 Utah 209,93 P. 566
• Decision Date: 10 January 1908
• Docket Number: 1875
• Court: Supreme Court of Utah
• Parties: MANTI CITY SAVINGS BANK v. PETERSON et al

93 P. 566

33 Utah 209

MANTI CITY SAVINGS BANK v. PETERSON et al

No. 1875

Supreme Court of Utah

January 10, 1908

APPEAL from District Court, Seventh District; F. Erickson, Judge.

Action by the Manti City Savings Bank against Niels Peterson and others. Judgment for plaintiff. Defendants appeal.

REVERSED AND REMANDED FOR A NEW TRIAL.

J. W Cherry, E. Hansen, and Thurman, Wedgwood & Irvine for appellants.

APPELLANT'S POINTS.

No rule is better settled than that one tenant in common cannot maintain replevin against his co-tenant for his individual interest in the property. This is for the reason that one party only has as much right to the possession of the common property as the other. (Shinn on Replevin, sec. 183 and authorities there cited: Cobbey on Replevin, sec. 292 et seq; Bohlin v. Arthur, 115 U.S. 482; Hill v Seager, 3 Utah 379; Balch v. Jones, 61 Cal 234; Frans v. Young, 24 Iowa 375; Hoffer v. Agee et al. [Colo.], 47 P. 973; Sharp v. Johnson [Oregon], 63 P. 485.)

W. D. Livingston and Willard Hanson for respondent.

RESPONDENT'S POINTS.

It is a rule well recognized that where the identity of specific property is lost by co-mingling with other property, that a recovery can be had in replevin from the mass of a quantity equal to the amount originally owned without identifying each particular item as the original property. (24 Am. & Eng. Ency. Law 482; Aams v. Gorham, 6 Cal. 68; Piazzek v. White, 23 Kans. 621; Sutherland v. Carter, 52 Mich. 471; Grimes v. Cannell, 23 Neb. 187; Fines v. Bolin, 36 Neb. 621; Young v. Miles, 20 Wis. 615; Halpin v. Stone, 78 Wis. 185; Wilkins v. Stewart, 85 Pa. 255; Bert v. Hoxie, 90 Wis. 623, 64 N.W. 426.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This is an action of replevin. On December 5, 1902, one Peter Thompson gave a mortgage to the plaintiff on 1,600 head of stock sheep to secure the payment of a promissory note for $ 1,594.16 payable August 1, 1903. The note and mortgage evidenced a renewal of a loan theretofore made by plaintiff to Thompson. Peter Thompson was engaged in the business of running sheep and farming. He died August 2, 1903. No part of the note had been paid. The mortgage contains a provision giving the mortgagee the right to take possession of the sheep on default of payments or breach of the mortgage covenants. The sheep described in the mortgage were "stock sheep marked with two upper bits in the left ear and an upper bit and under bit in the right, and branded with a 'T' wool brand on the back." On September 2d, the sheep then being in the possession of the defendants, the plaintiff demanded possession, which was refused. It then commenced this action, and the sheriff, under the order of seizure, took possession of 2,160 head of sheep marked as described in the mortgage, and delivered them to the plaintiff. The defendants, in their answer, denied plaintiff's ownership and right of possession, and alleged ownership and right of possession in themselves to 2,163 head of sheep, marked as described in the mortgage. The case was tried before the court and a jury. A verdict was rendered in favor of plaintiff. The defendants appeal.

The plaintiff gave evidence showing the execution and delivery of the note and mortgage, and nonpayment of the note; that Peter Thompson, at the time of his death, was in the possession of about 2,900 head of sheep; that about 2,163 head, including increase, were marked as described in the mortgage; a demand on, and a refusal by, the defendants to give possession; and that the plaintiff sold of the sheep so taken from the defendants and out of the herd, 2,141, head, in satisfaction of the mortgage. The defendants gave evidence that of the 2,900 head of sheep in the possession of Peter Thompson at the time of his death something over 2,000 head belonged to them, and which had been leased to him by them. With respect to the number owned by the defendant Fisher he testified that he first leased sheep to the deceased in 1897; that in 1901 he leased 387 head to him; and that the terms of the lease were evidenced by a writing signed and delivered by the deceased, as follows: "Ephraim, Utah, October 1st, 1901. This certifies that I have leased, and received of C. J. Fisher of Ephraim, Utah, three hundred and eighty-seven head of stock sheep for one year, and agree to pay to said C. J. Fisher ten head of sheep increase on each one hundred, also one and one-half pounds of wool on each head for the lease and use of said sheep. Said 387 sheep, together with the ten on each hundred increase when returned to said C. J. Fisher, to be an average of all the sheep in my herd, and to be received by him or delivered to him within thirty miles of Ephraim, Utah, on October 1st, 1902; said sheep to be separated from my herd in the presence of said C. J. Fisher or a representative duly authorized by him to receive them. [Signed] Peter Thompson." He further testified that the contract was renewed in the fall of 1902; that he had received the wool rentals, but not any sheep, from the deceased; that in the fall of 1903 he was entitled to and owned 468 head in the herd; that the deceased was to have the care and management of the sheep and pay the taxes on them, but that he was not to sell any of them without his permission; that the sheep and their increase were to be marked with Peter Thompson's mark (the same mark described in mortgage), and that the sheep were to be mixed with Thompson's sheep; and that the witness could not identify his sheep nor distinguish them from the rest of the herd.

The defendant Niels Thompson testified: That he leased sheep to the deceased commencing in 1896 on the same terms as testified to by defendant Fisher, but that his lease was verbal. Each year they had a settlement and determined the number of sheep belonging to him. In the fall of 1901 he had 832 head. In 1902 a settlement was had, and he had 915 head, and in 1903 he was entitled to and owned about 1,000 head.

The defendant Albert Thompson testified that he also leased sheep to the deceased commencing in 1896, upon terms similar to those of the other defendants; that at the end of each year a settlement was had; that in 1901 he leased 489.2 head, which was evidenced by a writing, signed and delivered to him by the deceased, as follows: "Ephraim, Utah, October 1, 1901. This certifies that I have 489.2 sheep on shares belonging to Albert Thompson, for which I agree to pay 1 1-2 pounds of wool and ten sheep increase per hundred, the sheep when delivered to be at or near Ephraim, Utah, and to be an average of my herd. [Signed] Peter Thompson." He further testified that in the fall of 1902 the contract was renewed.

The defendant Caroline Linberg testified that she leased sheep to the deceased under the following terms:

"Ephraim, Utah, July 6, 1897.

"This certifies that I have 21 head of sheep on shares belonging to Caroline Linberg and agree to pay 1 1/4 lbs. of wool per head and one increase on ten head. Received said sheep October 1, 1896, from Ezra Madsen.

["Signed]

PETER THOMPSON.

"Sheep due October 1, 1898, 25.4 and to be kept one year for ten increase per hundred and 1 1/2 pounds of wool per head. Sheep due October 1, 1899.

["Signed]

PETER THOMPSON.

"Sheep due October, 1900. 30.74 head, to be kept one year from October 1900, at above terms.

["Signed]

PETER THOMPSON."

"Ephraim, July 1, 1902.

"Have 37.19 head of sheep in herd of Caroline Linberg. Due October 1, 1902, and if left in herd to be on above terms, one in ten increase and one and one-half pounds of wool.

["Signed]

PETER THOMPSON."

The defendant Johnson testified that he leased sheep to the deceased commencing in 1896 on the same terms as those of the other defendants; that the contract was renewed each year; that in the fall of 1902 the deceased had 176 head of sheep, and in the fall of 1903, 193 head.

All of the defendants testified that they received the wool rentals but no sheep from the deceased; that the sheep leased by them were mingled with Peter Thompson's sheep, and were marked with his mark for convenience and identification. The defendants also introduced in evidence book entries made by the deceased, and accounts kept by him between the defendants and himself from 1896 to 1901. Among others were the following:

"Oct. 1, 1901. Albert Johnson. Sheep on shares: 160.9."

"Oct. 1, 1901. N. Thompson. Sheep on shares: 915."

"Oct. 1, 1901. Albert Thompson. Sheep on shares: 489.2."

"Oct. 1, 1901. C. J. Fisher. Sheep in herd: 320. John Linberg 27.95."

The defendants further testified that they had no knowledge or notice that the deceased had given a mortgage on the sheep.

The case was here on a former appeal upon substantially the same facts. 30 Utah 475, 86 P. 414, 116 Am. St. Rep. 862. On the first trial, which was before the court, all the evidence of the defendants as above set forth was stricken on the theory that, as the identical sheep leased by them to the deceased were not to be returned, and were not capable of identification, the transactions were to be regarded as sales, and not as bailments or as creating a tenancy in common, and that the title of the sheep passed to the deceased, and he therefore conveyed mortgage title to the plaintiff, who thereafter became entitled to the possession of them. In so ruling and in striking the evidence we held the court erred, for which, among other reasons, the judgment was reversed, and the cause remanded. On a retrial of the case, the court instructed the jury as follows: "The defendants assert title to the sheep in controversy in this action, and each of them claim to have delivered certain sheep to Peter Thompson before the execution of plaintiff's mortgage, upon the...