The Bank of Denton v. Jesch

• Decision Date: 10 February 1917
• Docket Number: 20,678
• Citation: The Bank of Denton v. Jesch, 163 P. 150, 99 Kan. 797 (Kan. 1917)
• Parties: THE BANK OF DENTON, Appellee, v. JOHN JESCH, Appellant
• Court: Kansas Supreme Court

163 P. 150

99 Kan. 797

THE BANK OF DENTON, Appellee, v. JOHN JESCH, Appellant

No. 20,678

Supreme Court of Kansas

February 10, 1917

Appeal from Atchison district court; WILLIAM A. JACKSON, judge.

Affirmed.

SYLLABUS

BY THE COURT

1. LEASE--Title to Growing Crops at Expiration of Lease. The common-law rule that a tenant is not entitled to a crop sown but not maturing before the expiration of his lease has not in this state been modified by any custom of which judicial notice will be taken.

2. SAME. Where a lease is drawn for two years or more a provision that the rent paid is to consist of stated shares of the crops raised, among which wheat is named, can not be regarded as implying a right on the part of the tenant to harvest a crop sown in the fall preceding the 1st of March on which his lease expires.

3. LEASE--Growing Crops at Expiration of Lease--Agreement Between Owner of Land and Tenant. A decision that the owner of land is precluded from disputing the right of a tenant to a share of a crop sown but not mature at the time of the expiration of the lease, is supported by evidence that prior to harvesting the crop the landlord recognized such right and exacted a promise from one claiming under the tenant that he would pay the expenses of the harvest.

P Hayes, of Atchison, for the appellant.

S. M. Brewster, of Troy, for the appellee.

OPINION

MASON, J.

John Jesch, the owner of a tract of farm land in Atchison county, rented it to G. H. Hutchison by a written lease for the term from March 1, 1910, to March 1, 1912, which was at some time not shown extended to March 1, 1913. In the fall of 1912 Hutchison sowed eighty acres to wheat, and on December 20 of that year he executed to the Bank of Denton a chattel mortgage on his interest in the crop, stated to be an undivided three-fifths. The crop was harvested by Jesch, the owner of the land. The bank sued him for the value of the tenant's share (less the expenses of harvesting) claimed by it under its mortgage, and recovered a judgment, from which he appeals.

The defendant maintains that as the lease contained no provision to the contrary the tenant's interest in the property, including the crop, ceased absolutely on March 1, 1913. The plaintiff contends that the tenant was entitled to a share in the crop which he had sown, and that in any event the defendant is precluded by his conduct from asserting title to all of it.

1. The general law on the subject of the rights of the off-going tenant with respect to the waygoing crop is thus stated:

"At common law, where land is leased for a number of years, and consequently the period of its determination is fixed, and the lease is silent as to who shall be entitled to the growing crops on the land at the end of the term, the outgoing tenant is not entitled to such crops. Where, however, the lease, expressly or by implication, recognizes the right of the tenant to sow in the last year of the term, the general rule is that he has a right to harvest the waygoing crop, where the lease is silent as to who is entitled thereto, and where there is an express agreement that the tenant shall have the waygoing crop he is of course entitled thereto. So in several jurisdictions, by general custom, the tenant is entitled to the waygoing crop, even where such right is not stipulated in the lease." (24 Cyc. 1069.)

In Delaware, New Jersey and Pennsylvania the common-law rule is held to have been modified by a general custom, of which the courts take notice, of permitting the tenant in some instances to harvest an annual crop sown before the expiration of his lease and maturing afterwards. (See cases cited in notes to the text quoted, and in Note, 9 Ann. Cas. 1139.) Elsewhere if such a custom exists it is given the same effect, but the party relying upon it is required to prove its existence as a part of his case. In the present instance no evidence was given of any local custom, and we can not say as a matter of law that the practice referred to obtains in this state.

2. If the lease, either expressly or by any fair implication to be drawn from its language in view of the surrounding circumstances, had...