Broughton v. Atchison

JUDGE, J. It is contended byethe appellant, in effect, that the evidence, as disclosed by the record, shows that there was a partnership between McDonald and Bonham in the cultivation of the land rented by McDonald from the appellee, and that the cotton for the conversion of which this suit was brought, having been grown on the rented premises, was partnership property, and that therefore the action of trover cannot be maintained by the plaintiff. It was shown by the evidence that McDonald alone made the rent contract with the plaintiff' below, and promised to pay the rent, which was to be three and one half bales of lint cotton ; but he stated at the time that the land was rented in behalf of himself and Bonham, and that they intended to cultivate it in partnership. The evidence showed further, that McDonald and Bonham had worked the land together during the year 1871, the period for which the land had been rented. But there was an entire absence of evidence to prove the terms and conditions of the agreement between them, under which they cultivated the land, and by which it might be seen whether or not a partnership had been formed. We do not think it a legitimate inference, from the evidence, that a strict partnership had been formed between the parties. The evidence may as well authorize the conclusion that they were only contractors in a joint farming adventure; and this con [65] strnction harmonizes with the rule that the bill of exceptions is to be construed most strongly against the party excepting. When the law-day of the mortgage had passed, the plaintiff became invested with the legal title to that portion of the crop covered by the mortgage, and could maintain trover against the defendant if he had been guilty of an illegal conversion of any part of it. But how did the defendant stand ? No evidence was offered by him to show how he acquired thé possession of the cotton, nor did he make any attempt to connect his possession with an outstanding title in another. From aught that appears in the record, he stood before the court in the attitude of a naked trespasser. Thus standing, he had no right to make any question in the court below as to the proper application of the money derived from the sale of any of the mortgaged property, nor to contend for an allowance to him of any profit resulting from the sale of the horse by the plaintiff after she had purchased him at the mortgage sale, nor to make objection to the mode in which the horse had been advertised for sale under the mortgage. If these questions, or any of them, could be made at all, they could only be made by McDonald, or those standing in his stead or holding under him. It results that there is no error in the record of which the appellant can complain, and that the judgment of the circuit court must be affirmed.