Starkey v. Powell

ATWOOD, J. This is an action for trespass and conversion. The petition was filed in the Circuit Court of Pettis County, December 4, 1923, and consists of two counts, the first alleging a simple conversion of two hundred and fifty bushels of standing and growing corn, of the value of $177.50, and the second alleging conversion under Section 4242, Revised Statutes 1919, known as the treble- *848 damage statute, of about fifty-five acres of standing eo unsevered from the ground, of the value of about $1300. Defendant’s answer consisted of a general denial of the first and second counts of the petition, and allegations that one Charles Bodenheimer, on September 3, 1923, and prior and subsequent thereto, was the owner and in possession of the land described in plaintiff’s petition, and during the year 1923 had planted and cultivated a crop of corn thereon; that prior to September 3, 1923, he, the said Bodenheimer, advertised the said crop of growing corn and all of his other personal property for public sale on said 3rd day of September, 1923, and pursuant thereto sold said entire crop of standing corn to defendant for the price and sum of seventy cents a bushel, giving. defendant the right to go upon said land and cut up, gather, care for and remove said corn crop as he desired; and that plaintiff has not and never has had any right, title or interest in and to said corn crop or any part thereof. Plaintiff’s reply denied all allegations of new matter in defendant’s answer. There is little conflict in the evidence. It tended to support the allegations of fact set up in the petition and answer, and further showed that Bodenheimer and his wife on September 18, 1922, executed a deed of trust on said land to secure a note of that date for $4,000, due two years after date, bearing interest from date at the rate of seven per cent per annum, interest payable annually; that this deed of trust was second and subject to a prior deed of trust on the same land securing a principal indebtedness of $17,000; that ten or twelve days after defendant purchased said standing crop of corn by oral bid at said public sale on September 3, TJ23, defendant cut up and shocked about forty acres thereof (which part of the crop is not involved in this action); that afterwards, on the 18th day of September, 1923, the said Bodenheimer defaulted in the payment of the interest then due on the $4,000 note secured by said second deed of trust on the land; that afterwards, on or about October 1, 1923, the trustee named in said deed of trust, at t? 3 request of the legal holder of said mortgage indebtedness, advertised said land for sale under said deed of trust; that in the meanwhile the said Bodenheimer traded the farm to one Harris Cohen, but remained in possession thereof ■until on or about November 3, 1923; that on October 22, 1923, the land was sold under said foreclosure proceeding, the corn crop covered by this action still standing in the field unsevered from the ground, and plaintiff herein became the purchaser of said land at said foreclosure sale, without actual notice of the alleged purchase of said standing corn crop by defendant herein; that a few days after November 1, 1923, defendant entered upon the land and gathered and *849 removed the corn described in the first count of plaintiff’s petition, and after plaintiff had locked the gate of the farm and served defendant with written notice that he owned the corn and forbidding his gathering same, defendant again entered the farm and gathered the corn sued for in the second count of plaintiff’s petition. At the close of all the evidence the court gave the jury, at the request of defendant, a peremptory instruction to find for defendant. The jury returned a verdict accordingly, and judgment was rendered for defendant. Plaintiff appealed and assigned errors a„ follows: 1. The court erred in instructing the jury at the close of all of the evidence, to find for the defendant. “2. The court erred in holding that defendant got title to a crop unsevered from the soil by an oral sale as against t! e purchaser of the land under foreclosure of a deed of trust put upon the land prior to the sale, such purchaser having purchased before severance of the crop. “3. The court erred in holding that there was a constructive severance of the crop. “4. The court erred in holding that an oral sale of the crop passed a good title as against an innocent purchaser in good faith at foreclosure sale under a deed of trust upon the land. ’ ’ The Kansas City Court of Appeals held that appellant, who was the purchaser at the foreclosure sap under the deed of trust, acquired title to the corn crop then standing and unsevered from the ground, and reversed the judgment and remanded the case, but deeming its decision in conflict with the decision of Springfield Court of Appeals in Farmers Bank of Mt. Vernon v. Parker, 215 Mo. App. 96, the case was transferred to this court. In Farmers Bank of Hickory v. Glade T. Bradley, ante, page 811, the same question arose in connection with rights asserted under a chattel mortgage given by the maker of a deed of trust on a standing com crop. The rule there stated and applied is applicable and controlling in this case. The judgment of the circuit court is reversed and the case remanded. All concur, except Graves, J., who is absent.