Warner v. Abbey

Ekdicott, J. The defendant requested the court to rule that there was no evidence to support the several counts of the declaration, and that the plaintiff could not recover. The several counts are for one and the same cause of action. The first count is in the nature of trespass for breaking and entering the plaintiff’s close and carrying away a quantity of tobacco, the property of the plaintiff; the second and third counts, of trespass de bonis for taking the tobacco with force and converting it to the defendant’s use; the fourth and fifth counts, of trover for converting, the same to the defendant’s use. The two counts in trespass de bonis and the two in trover differ only in the quantity of tobacco alleged to have been taken. The plaintiff claimed to recover only the value of one half the tobacco so taken. Any facts sufficient to support an action of trespass guare dausum, with the aggravation alleged of removal of personal property, will also support an action of trespass de bonis, and an action of trover for conversion of the same property; because a party may waive the trespass guare clausum and rely upon either of the other forms of action, or waive the trespass de bonis and rely upon the count in trover. But facts that would support trespass de bonis would not necessarily support trespass guare clausum; Eames v. Prentice, 8 Cush. 337; and facts that would support trover would not necessarily sustain either action of trespass. As the judge refused the defendant’s request and put the case to the jury on all the counts and the jury found upon them all, it is only necessary to determine whether there was evidence that the jury might properly consider in support of the count for trespass guare dausum. In construing contracts for the cultivation of land at halves, it is impossible to lay down a general rule, applicable to all cases; because the precise nature of the interest or title between the contracting parties must depend upon the contract itself, and very slight provisions in the contract may very materially affect [360] the legal relations of the parties and their consequent remedies for injuries as between themselves. In some cases, the owner of the land gives up the entire possession, in which event it is a contract in the nature of a lease with rent payable in kind; in other cases, he continues to occupy the premises in common with the •other party, or reserves to himself that right, and so a tenancy in common to that extent is created, and each is entitled to the joint possession of the crops, or the possession of the one is the possession of the other, until division; or he may retain the sole possession of the land, and the other party may have the right to perform the labor and receive half the crops as compensation; or the two parties may become tenants in common of the growing crops, while Ho tenancy in common as such exists in the land. Chandler v. Thurston, 10 Pick. 205. Walker v. Fitts, 24 Pick. 191. Merriam v. Willis, 10 Allen, 118. Delaney v. Root, 99 Mass. 546. Cornell v. Dean, 105 Mass. 435. If the relation of tenants in common in the land or crops exists between the parties by virtue of their contract, on familiar principles trespass quare clausum or de bonis asportatis would not lie; and trover for conversion of the share of one party in the crops by the other can be maintained only where there is such destruction, sale or other disposition of the crops by the one, that the other party is precluded by that act from any further enjoyment of it. Daniels v. Daniels, 7 Mass. 135. Weld v. Oliver, 21 Pick. 559. Burbank v. Crooker, 7 Gray, 158. Delaney v. Root, 99 Mass. 546. In this case, the tobacco taken being in the possession of the defendant at the time the action was brought, trover does not lie if the parties were tenants in common. If, therefore, such was the relation of the parties under their contract, this action could not be maintained on either count. But where, on the other hand, the owner parts with his entire possession of the land to his lessee or tenant, and is to receive his half by way of rent in kind, the relation of tenants in common does not exist; but it is that of lessor and lessee. The lessor has no right to disturb the lessee in his possession or to interfere with or take his half, for, the possession of the land being in the lessee, the property in the crop must necessarily follow the interest in [361] the land, until the time for division. Chandler v. Thurston, 10 Pick. 205. Cornell v. Dean, 105 Mass. 435. The case of Lewis v. Lyman, 22 Pick. 437, was decided upon the construction of a written lease, and is not applicable here either in its facts or rea- . saning. In such case, therefore, the lessee or tenant could maintain trespass quare clausum for injury to the possession of real estate, with an aggravation of the same by the taking of personal property, and could equally maintain trespass de bonis or trover for the taking of the same property. We come, therefore, directly to the question whether there was evidence for the jury that would sustain an action for trespass quare clausum. There was evidence tending to show, and from which the jury could infer, that by the contract the plaintiff was for one year to have exclusive possession and control of the farm, stock, tools and buildings, except a portion of the house which was occupied by other tenants of the defendant, and that he was also to have the entire charge of the farming and the way in which it should be carried on, and to retain one half of all the crops, including eggs and butter, and to have one half of the gain of the stock, the other half to go to the defendant. This evidence was contradicted by the defendant, but it was for the jury to decide between them. From these and other facts stated in the exceptions, there was evidence bearing upon the relation of the parties to each other, and their respective rights in the land and crops, proper for the consideration of a jury. This is the only question reserved for us to determine upon this part of the case. The finding of the jury negatives the defendant’s claim that they were tenants in common, and establishes the fact that the defendant had no right to enter and take the tobacco. The other instructions given were not objected to, and it is to be presumed they were full and correct upon all points affecting the rights of the parties, including the instructions as to the time when par:icular crops or produce would be considered ready for division, and in what manner they should be delivered by the plaintiff and taken by the defendant. We think, therefore, the first five prayers for instructions were properly refused. As to the sixth and seventh, they were predi* [362] coted upon the jury finding that the plaintiff and defendant were tenants in common, and that the defendant had the right to enter and have equal rights in the crops with the plaintiff. The jury having found that he had not, they become immaterial. Exceptions overruled.