McCormack v. Drummet

• Decision Date: 16 October 1879
• Citation: 2 N.W. 729,9 Neb. 384
• Parties: C. H. & L. J. MCCORMICK, PLAINTIFFS IN ERROR, v. WILLIAM DRUMMETT AND OTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

2 N.W. 729

9 Neb. 384

C. H. & L. J. MCCORMICK, PLAINTIFFS IN ERROR, v. WILLIAM DRUMMETT AND OTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

October 16, 1879

ERROR to Jefferson county district court.

The action was one of replevin brought by the Drummetts against the McCormicks to recover property bought by the latter at a sheriff's sale under an execution issued in their favor against Adam Ziegler, the step-father of the Drummetts. Upon a trial before WEAVER, J., verdict and judgment were given in their favor, to which McCormicks took exceptions. Further facts appear in the opinion.

AFFIRMED.

Slocumb & Hambel, for plaintiffs in error.

1. The instruction of the court that it was necessary for the defendant in the court below to prove that said execution debtor was the owner of the property in question at the date of the levy and sale, before they (McCormicks) could derive title to the property, misled the jury, and they undoubtedly understood from said instructions that the burden of proof was on the said C. H. & L. J. McCormick. In an action in replevin the burden of proof is always on the plaintiff in the case, and unless he shows by a preponderance of evidence that he was the owner and entitled to the immediate possession of the property in controversy at the time of the commencement of the action, the verdict and judgment must be for the defendant, and this is the rule where defendant alleges ownership of property in himself. Henderson v Casteel, 3 Cr. C. C., 365. Williamson v. Ringold, 4 Cr C. C., 39.

2. The instruction asked for by plaintiffs in error, which was to the effect that the owner of the soil was presumed to be the owner of the crops grown thereon, unless there is evidence of a valid lease of the lands, is, we think, a sound proposition of law; and as the evidence shows that the land on which the grain was raised belonged to Adam Ziegler, it was the right of plaintiffs in error to have the jury informed of the legal effect of that fact, and the court certainly erred in refusing the instruction.

W. H Snell, for defendants in error.

1. The statute of frauds applies only to executory contracts, and when a contract is once executed neither party can claim any advantage under the statute. If such were the case, it would be a fraudulent statute and not a statute to prevent fraud. Brown on Statute of Frauds, sec. 467. Hoby v. Roebuck, 7 Taunt., 157. Rakes, admr., v. Pope, 7 Alabama N. S., 161.

2. A lease of lands for the life of the lessor is not a lease "for a longer period than one year," consequently the statute of frauds has no application in this case. Gen. Statutes, p. 392. Peter v. Compton, 1 Smith's Lead. Cases. Peters v. Westborough, 19 Pickering, 364. Howard v. Burgen, 4 Dana, 137. Lyon v. King, 11 Metcalf, 411. Moore v. Fox, 10 Johns., 244.

OPINION

COBB, J.

Upon comparing the petition in error with the motion for a new trial in this case, we find our field of inquiry reduced to narrow compass. In order to enable this court to examine and pass upon alleged errors occurring upon a trial to a jury, it is necessary that the attention of the trial court be specifically called to each alleged error in the motion for a new trial, and the same be also specifically pointed out to this court in the petition in error. I will therefore only notice those points in this case which come within those conditions. Several points made in the motion for a new trial are not contained in the petition in error, and will therefore be considered as abandoned by the plaintiffs in error. There are also some points contained in the petition in error which were not made in the motion for new trial. These cannot be considered by this court, because it would be unjust to the trial court to reverse its judgment upon a point to which its attention had not been called. For if the point is a good one we must presume that, had the attention of the trial court been called to it, the result would have been different.

Accordingly I shall consider only the third, fourth, and sixth errors assigned in the petition in error, which are as follows:

"3d. There was error in admitting parol testimony of defendants in error to prove a lease to them of lands for more than one year."

"4th. There was error on the trial of said cause in the court stating orally in the hearing of the jury, upon refusing to give the instructions asked for by the plaintiffs in error, numbered second and fourth, that the statute of frauds had no application to this case."

"6th. That the court erred in overruling the motion to set aside the verdict in said cause for the further reason that said verdict is not supported by the evidence:"

The third and fourth points may properly be considered together because if this case is within the statute of frauds, then it was error to receive parol testimony to prove a lease...