Timothy v. Hicks
| Decision Date | 07 July 1942 |
| Citation | 164 S.W.2d 99,237 Mo.App. 126 |
| Parties | Tillie E. Timothy, Ida Hicks and James D. Hicks, Appellants, v. Ben W. Hicks, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Scotland County; Hon. Walker A. Higbee Judge.
Reversed and remanded.
Smoot & Smoot for appellants.
(1) O'Reilly v. O'Reilly et al., 157 S.W.2d 220. (2) 47 C. J., p. 573, sec. 824; Fisher v. Johnson et al., 51 Mo.App. 157; Hayden v. Burkemper, 40 Mo.App. 346, 101 Mo. 644; Hayward v. Poindexter, 229 S.W. 256; Arnote v. Rodgers et al., 250 S.W. 633. (3) (a) The decree in partition rendered by the Circuit Court of Scotland County was and is conclusive as to every right title or interest put in issue and adjudicated or which might have been adjudicated and this applies to right to or interests in growing crops or rent. 47 C. J., p. 434, sec 416; Landis et al. v. Overman, 293 S.W. 371. (b) In the absence of any provision relating thereto in the decree, crops growing on the land pass with it to the allottee or purchaser, although planted and cultivated by another of the former tenants in common. 47 C. J., p. 434, sec. 416, note 70; Calhoun v. Curtis, 4 Metc. (Mass.), 413, 38 Amer. Dec. 380; 47 C. J., p. 434, sec. 416; Landis et al. v. Overman, 293 S.W. 371. (4) 62 C. J., p. 533, sec. 209. (a) And defendant cannot avail himself or rely upon any title or interest acquired since the commencement of this action to defeat the other plaintiffs' right of action. Plaintiffs' right of action is to be governed by the facts as they exist at the time of the commencement of this action. 1 C. J., p. 1150, sec. 349. (b) And any interest which defendant may have acquired by such instrument purporting to be signed by the plaintiff, Ida Hicks, cannot be relied on by defendant otherwise than to lessen the quantum of recovery herein. 1 C. J., p. 1150, sec. 1150, note 63(b), Hostler v. Scull, 3 N.C. 375. (5) The plaintiffs (appellants) as the purchasers of the lands at the sale in partition and upon which the crop of corn was then growing became the owners of the crop of corn as against the defendant (respondent), one of the former tenants in common thereof, and as such owners can maintain the present action in replevin against the defendant without first obtaining possession of the lands through abandonment or writ of restitution before crops are matured or severed. Hayden v. Burkemper, 40 Mo.App. 346; Hayden v. Burkemper, 101 Mo. 644. (6) (a) Plaintiffs can maintain action in replevin to recover their part of the corn where corn is of the same kind and value and can be admeasured and separated. 54 C. J., p. 441, sec. 52; Brumley v. McCormack, 17 S.W.2d 597. (b) Interest in a chattel had by a third party does not preclude replevin by one having right to possession as against defendant. Rankin v. Wyatt, 73 S.W.2d 764. (c) And the fact that a third person may have some interest in the property will not preclude replevin by one having the right to possession. 54 C. J., p. 437, sec. 47; Rapp v. Vogel, 45 Mo. 524. (7) The plaintiffs being tenants in common of the lands on which the corn was standing, their interests are several and not joint. 62 C. J., p. 409, sec. 4; Brumley v. McCormack, 17 S.W.2d 597.
L. F. Cottey and Allen Rolston for respondent.
(1) Bechler v. Bittick, 121 S.W.2d 188; Edwards v. Eveler, 84 Mo.App. 405; Adams v. Leip, 71 Mo. 597; Jenkins v. McCoy, 50 Mo. 348; Bechler v. Bittick, 121 S.W.2d 188, 192. (2) The judgment in partition was not an adjudication of the tenancy of defendant. Especially under the circumstances of this case the tenancy agreement was not an issue in the partition suit, and if pleaded, would not have been any defense to the partition suit. He was in possession of this land under a contract between himself and plaintiffs, and plaintiffs did not seek to abrogate that contract. The fact that he was a cotenant owner did not prevent him being a rental or contract tenant. Gregg v. Land Co., 97 Mo.App. 44, 51; Allen v. McDonald, 63 Mo.App. 574; Arnote v. Rogers, 250 S.W. 633; Morgner v. Biggs, 46 Mo. 66. (3) Nelson v. Massman Const. Co., 120 S.W.2d 77, and same case in 130 S.W.2d 491; Hamrick v. Lasky, 107 S.W.2d 201; Churchill v. Lammers, 60 Mo.App. 244.
This action in replevin was brought by appellants, as plaintiffs, against respondent, as defendant, to recover 32 acres of corn on the stalk on a farm owned by plaintiffs and located in Scotland County, Missouri. A trial before the court and a jury resulted in a directed verdict in favor of defendant upon which judgment in favor of defendant and against plaintiffs was rendered. Plaintiffs duly appealed.
Plaintiffs' petition alleged that, on July 1, 1941, they were the owners and entitled to the possession of 32 acres of growing corn on the stalk on lands belonging to plaintiffs. The land was fully described in the petition. Plaintiffs further alleged that on said date defendant wrongfully took said corn on the stalk from the possession of plaintiffs and still wrongfully and unjustly detains the same to plaintiffs' damage in the sum of $ 100. Plaintiffs prayed judgment against defendant for the recovery of the possession of said 32 acres of corn on the stalk and $ 100 damages for the taking and detention thereof, and prayed that, in case of delivery of said property could not be had, judgment be entered in their favor for $ 500, the value thereof.
With said petition plaintiffs filed an affidavit signed by plaintiff James D. Hicks stating, in substance, that plaintiffs are the owners and entitled to possession of the property described in the petition; that the same was wrongfully taken and detained by defendant; that their cause of action accrued within one year; that the value of the property is $ 500 and that the same had not been seized under any process, execution or judgment against plaintiffs.
The answer of defendant contained a general denial of the allegations of plaintiffs' petition, following which defendant averred that plaintiffs are the owners, as tenants in common, of the real estate mentioned and described in their petition, and that any right or interest plaintiffs have in or to the personal property described in their petition is derived to them solely by reason of their ownership of said real estate as tenants in common thereof, and that by reason thereof plaintiffs' cause of action, if any they have, has at all times been a joint one in which each of the plaintiffs is jointly interested and in which liability of defendant, if any, existed in favor of plaintiffs jointly and not severally; that, after the institution of this action and during its pendency in the trial court, on November 6, 1941, plaintiff Ida Hicks, in consideration of $ 150 paid to her by defendant, agreed with defendant, for herself and on behalf of the other plaintiffs herein, to permit defendant to gather and remove from the lands described the crop of corn standing thereon, and agreed to dismiss said action, to pay all costs and attorney's fees accrued therein, and to release defendant from any and all further liability on account of the cause of action alleged in plaintiffs' petition herein; that, by reason of said agreement and said release, this action should be abated and adjudged to be barred and should be dismissed and defendant discharged therefrom; that, at all times mentioned in plaintiffs' petition and for a long time prior thereto and at all times since, defendant and one Clark Hicks were in possession of all the lands mentioned in plaintiffs' petition under claim of right and adversely to any and all claims of plaintiffs.
The reply of plaintiffs to the amended answer of defendant, after denying generally the allegations of defendant, pleaded, by way of estoppel, a judgment in the partition of the lands described in plaintiffs' petition, upon which lands plaintiffs alleged the crop of corn was at the time of said judgment in partition then growing; that said judgment was rendered by the Circuit Court of Scotland County, Missouri, at the May Term, 1941, in said proceeding in partition wherein plaintiffs herein and one Joe Hicks were plaintiffs therein and defendant herein, Ben W. Hicks, was defendant therein; that the crop of corn in controversy herein was growing on said lands prior to and at the date of the rendition of the judgment in said partition suit and the sale of the lands by the sheriff, as ordered and directed by the judgment and decree of said circuit court; that the sale of said lands was made under said judgment and decree by the sheriff of said county on June 30, 1941; that at said sale defendant herein was present and bid on said real estate and the crops growing thereon; that plaintiffs being the highest and best bidders at said sale, the aforesaid real estate and crops growing thereon were sold to them; that the sheriff's report of said sale was duly confirmed and approved by the court and a deed was executed to plaintiffs as purchasers, and that the proceeds of the sale, after payment of costs and expenses thereof, were ordered to be and were distributed to the parties entitled thereto; that Ben W. Hicks, defendant herein, received from the sheriff his distributive share of said proceeds; that no appeal was taken from the judgment and orders of said court in said partition suit; that defendant, although appearing as a party in said partition suit and being present and bidding at the sale of said lands, did not at any time make or assert any right or claim to possession of said lands or to any right, interest or claim to any of the growing crops thereon; that, by reason of said partition proceedings and the failure of Ben W. Hicks, defendant herein, to set up his...
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