Thostesen v. Doxsee
| Decision Date | 05 January 1907 |
| Parties | THOSTESEN v. DOXSEE ET AL. |
| Court | Nebraska Supreme Court |
A clause in a lease attempting to create a lien on the crops to be raised on the leased premises for the payment of rent reserved is ineffectual to create either a legal or an equitable lien on the crops grown thereafter on the leased premises. Brown v. Neilson, 86 N. W. 498, 61 Neb. 765, 54 L. R. A. 328, 87 Am. St. Rep. 525, followed and approved.
Commissioners' Opinion. Department No. 1. Appeal from District Court, Custer County; Hostetler, Judge.
Action by Zack Thostesen against Charles W. Doxsee and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.R. A. Moore, for appellants.
H. M. Sullivan, for appellee.
On the 5th day of March, 1904, plaintiff leased to the defendants in writing a certain tract of land described in the lease and situated in Custer county, Neb., for a period of one year. The conditions of the lease material to the controversy were that the defendants were to pay $125 for the use of the pasture land on the leased premises, this agreement being evidenced by two promissory notes, one for $50, due October 1, 1904, and one for $75, due January 1, 1905, and that they were also to pay $1 per acre for all the land cultivated in millet, and to deliver to the plaintiff on the premises one-third of all the corn raised thereon. Plaintiff agreed to make certain repairs on the windmill on the place and also reserved the right, if it should be necessary to protect the crops, to employ men to cultivate and harvest the same at defendants' expense. The lease also contained the following condition: “It is further expressly agreed and understood between the parties hereto, that all crops planted upon and all hay upon said land shall be charged with the payment of the rent thereof, and said second party agrees that the rent and charges aforesaid, are and shall remain a first mortgage lien on said product until fully paid.” The defendants took possession of the premises under this leasehold agreement, and it is without dispute that they cultivated the premises in a good husbandman-like manner. The $50 note was paid without controversy, but in January, 1905, a dispute arose as to the amount due to plaintiff, because of a set-off claimed by the defendants for repairs that they had made on the windmill, and there was a dispute as to the amount due on the millet ground, and a further dispute as to whether or not the defendants were fairly dividing with the plaintiff the corn they had raised on the premises. Plaintiff thereupon sued ont an injunction in the first instance to restrain defendants from prohibiting him from entering on the premises and taking his share of the corn, and by a supplemental order he asked to have the defendants enjoined from removing any of the crop from the premises until the rent had been fully paid. The clause of the lease before set out was alleged on in the petition, with an allegation...
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