Sims v. Jones

• Decision Date: 04 May 1898
• Docket Number: 8081
• Citation: 75 N.W. 150,54 Neb. 769
• Parties: GEORGE W. SIMS v. JAMES B. JONES
• Court: Nebraska Supreme Court

75 N.W. 150

54 Neb. 769

GEORGE W. SIMS v. JAMES B. JONES

No. 8081

Supreme Court of Nebraska

May 4, 1898

ERROR from the district court of Custer county. Tried below before SINCLAIR, J. Reversed.

REVERSED AND REMANDED.

John S Kirkpatrick and L. E. Kirkpatrick, for plaintiff in error.

Sullivan & Gutterson, contra.

OPINION

HARRISON, C. J.

The plaintiff herein alleged for cause of action that in a suit instituted in the county court of Custer county against his debtor, Thompson Sims, the plaintiff procured to be issued a writ of attachment, which was delivered to the defendant in this cause, the sheriff of Custer county, who levied the writ on certain property of the said debtor of plaintiff of sufficient value to satisfy the claim of plaintiff as stated in the writ, and that through the subsequent abandonment of the levy by the officer the plaintiff was damaged in the amount sought to be recovered in the attachment suit. It appeared that the defendant in the last mentioned case was the owner of land in Custer county, which had been leased, the owner to receive as rent the one-third of the crops raised during the year, and that on about twenty-five acres of the land oats were sown and on ninety acres corn was planted and grown. The levy of the writ of attachment was alleged to have been on any interest the landlord possessed at the time in the crops. The oat crop had been cut and almost, if not all, stacked, but none threshed. The corn was standing in the field ungathered, whether matured or not does not appear, but the time of the levy would raise the presumption that the corn had not then ripened. The one-third of the oats were to be delivered to the owner of the land after threshing, and the one-third of the corn in the crib. In the district court a jury was waived, and of the issues there was a trial to the court, which resulted in a determination that the defendant in the attachment suit had no attachable interest in the crops at the time the levy was made, and judgment was rendered in favor of defendant in the case at bar.

Many cases hold that under such a contract as we have herein before outlined the tenant is the owner of the crops until the division is made, and the owner of the land acquires and has no interest therein until his stipulated portion is set apart to him. (Recs v. Baker, 4 G. Greene [la.] 461; Alwood v. Ruckman, 21 Ill. 200; Woodruff v Adams, 5 Blackf. [Ind.] 317. See, also, portion of note to Putnam v. Wise, 37 Am. Dec. [N.Y.] 319.) And it has been held that the landlord of such a lease has no leviable interest in the crops. (Walston v. Bryan, 64 N.C. 764; Shinn, Attachment & Garnishment sec. 32; Howard County v. Kyte, 69 Iowa 307, 28 N.W. 609.) On the other hand, it has been concluded that a landlord and tenant of a letting of land as herein involved are tenants in common of the crops. (See Putnam v. Wise, 1 Hill [N.Y.] 234, 37 Am. Dec. 309, and note thereto on pages 317, 318.) The interest of a tenant in common may be levied on and sold. (Bernal v. Hovious, 17 Cal. 541, 79 Am. Dec. 147; Veach v. Adams, 51 Cal. 609; Branch v. Wiseman, 51 Ind. 1.) That growing annual crops are personal property and subject to levy and sale as such for the satisfaction of the indebtedness of an owner has been recognized in this state, see Johnson v. Walker, 23 Neb. 736, 37 N.W. 639. (See, also, generally, 1 Freeman, Executions sec. 113, and citations in support of the text.) It also seems to be indicated by the section 530 of the Code of Civil Procedure in relation to exemptions, wherein it states: "No property hereinafter mentioned shall be liable to attachment, execution, or sale, or any final...