Frost v. Kellogg

The opinion of the court was delivered by Redfield, J. We are inclined to believe, that there is nothing in the present case to distinguish it from the ordinary case of letting a farm, by the owner, to one who performs the labor and receives a share of the products of the farm and the stock. And in such cases, the general result of such a contract is, to make the landlord and tenant joint owners of the increment, or tenants in common. I use the terms landlord and tenant, as most convenient to express the relation, — being aware, that the case of a strict tenancy does not perhaps arise. In this class of cases it has been held, that the parties may, by their contract, vest the property in the increment either in the landlord, or tenant. In Smith v. Atkins, 16 Vt. 461, it was held, that the tenant had no attachable interest, and the same has been decided in many other cases. Paris v. Vail, 18 Vt. 277. In Hurd v. Darling, 14 Vt. 214, they are held to be, at most, tenants in common. Some query is there made, whether, as the tenant there bound himself to deliver the crops to the landlord, any title could be said to rest in him, until delivery. But that query is suggested merely upon the construction of that contract, and does not amount even [312] to a dictum, — which, if it did, would be of little value. But the general rule is there declared, that, in such contracts, the landlord and tenant are tenants in common. In Brainard et al. v. Burton, 5 Vt. 97, when a farm was let for $50,00, to be paid out of the produce of the farm, and the lessor to have a lien upon the whole, until the rent was paid, it was held, that the lessor had no property in the crops, until his portion was severed. And in Manwell, Adm’r, v. Estate of Manwell, 14 Vt. 14, a similar doctrine was held. And in Hurd v. Darling, 16 Vt. 377, it is held, that the lessor had no interest in the crops, until after a severance. Judge Bennett, in Aiken v. Smith, 21 Vt. 172, questions this decision. But that surely was not necessary to his purpose. The decision goes upon the construction of that particular contract, and makes nothing either in favor of or against the general principle. That is admitted in all the cases, — as was again very elaborately shown in Aiken v. Smith. And we think this case must fall under the general rule, that Mrs. Pike and Hurlburt, the debtor, were tenants in common, and consequently Hurlburt had an attachable interest ; and if the officer had done nothing with the property to discharge himself, he was liable for a return of the property, after the attachment was dissolved. But in the present case, it seems to us, the property must be considered as returned to the owners by the defendant, and consequently there was no liability resting upon the plaintiff to either Mrs. Pike, or Hurlburt, and, of course, no remaining obligation on the part of the defendant. Unless an officer, under such circumstances, could relieve himself from liability, by delivering the property to either of the joint owners, his position is truly critical and embarrassing. He surely has no legal authority to act as a decider between them; and if they will not agree, who shall take the property, he must keep it and stand the consequences. We think he may deliver the property to either joint owner. But as he found it in Mrs. Pike’s possession, it was perhaps more suitable, that it should be delivered to her. As the attachment was clearly legal and valid, as against Hurlburt, and continued in force until the property was sold by Mrs. Pike, we do not see, how he can have any action against any one, except against his co-tenant, for his share of the avails.