Sheble v. Henry Frederick Charles Curdt

• Decision Date: 31 March 1874
• Citation: 56 Mo. 437
• Parties: GEORGE W. SHEBLE, Appellant, v. HENRY FREDERICK CHARLES CURDT, Respondent.
• Court: Missouri Supreme Court

56 Mo. 437

GEORGE W. SHEBLE, Appellant,

v.HENRY FREDERICK CHARLES CURDT, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Bakewell, Farish & Mead, for Appellant.

I. There was an actual sale of this growing crop, perfectly good between the parties thereto. The attempt of the defendant to remove the crop, for the purposes of selling the same and pocketing the proceeds, was a tortious conversion which entitled the plaintiff, the vendee, to immediate possession. (Loeschmann vs. Machin, 2 Stark., 211.)

II. To comply with the statute it was only necessary that the plaintiff should have the right of immediate possession, and that the property should be found in possession of another. (Pilkington vs. Trigg, 28 Mo., 95; Gen. Stat. 1865, 663.)

III. An action for claim and delivery of property severed from the freehold, while in adverse possession of defendant, whether as a trespasser, or under title may be maintained. (Kendall vs. Lohmans, 31 Cal., 155; Davis vs. Camp, 1 Price, 53.)

IV. By the severance from the freehold, the wheat became the personal property of the owner of the land, the lessor, and on the attempt to remove it, trover would lie. (Watson vs. Hunter, 5 Johns. Ch., 169.)

Jecko & Hospes, for Respondent.

I. The lease did not purport to convey an absolute title o right of possession to the wheat. It is nothing more than a provision in the lease for a more summary mode of enforcing the lien which the appellant had under the statute. (2 Wagn. Stat., [1870,] 880, § 18.) The lien of the landlord can only be enforced by process of law. (Knox vs. Hunt, 18 Mo., 243; see also Burgess vs. Kattlemann, 41 Mo., 480.)

II. If the attempted removal of the crop of wheat by the respondent endangered the rent to become due, section 26, Chap. 85, of 2 Wagn. Stat., 1870, p. 881, gave appellant a complete remedy and protection. The appellant never demanded the rent, nor the possession of the wheat; both were necessary to enable him to maintain this action, if it could be maintained at all.

III. In any view of the case he could not sell the wheat till default in the payment of the rent.

SHERWOOD, Judge, delivered the opinion of the court.

On the 29th day of November, 1870, the plaintiff, Sheble, leased to defendant, Curdt, his farm in St. Louis county, until the 1st day of March, 1872, at a rent of $475, payable on the 1st day of September, 1871. Among other clauses in the lease, which was signed by both lessor and lessee, was one couched in these words: “And for the purpose of securing the payment of said sum, hereinbefore reserved as rent for the said premises, said party of the second part hereby sells, transfers and sets over to said party of the first part, all of the crops of wheat now growing on said devised premises; hereby giving to said party of the first part full power and authority, in case of failure on his part to pay said rent when the same becomes due as hereinbefore provided, to take possession of said crops and sell the same at the best price he can obtain therefor, and out of the net proceeds thereof, to pay said rents hereinbefore reserved, and the balance, if any, he shall pay to said party of the second part.”

In July, 1871, defendant had commenced removing the wheat, which had been harvested and placed in sacks, from the demised premises, and thereupon the plaintiff, on...