Thomas v. Mann

Beakd, Justice. This is an action brought by the plaintiff in error, Thomas, against the defendant in error, Mann, in the District Court of Sweetwater county, to recover the possession of certain sheep. There was a trial to the court resulting in a judgment in favor of the defendant and against the plaintiff and the sureties on the replevin bond for $800 and costs. Plaintiff brings error. It is alleged, in substance, in the petition, that in the lifetime of one Evi Roman, he and plaintiff were co-partners in the ownership of said sheep. That Roman died in June, 1909. That at the time of his death he was in charge of the herding of said sheep. That since his death the defendant has had said sheep in his control. That on April 14, 1910, plaintiff demanded of defendant the possession of said sheep which was refused. This action was commenced April 16, 1910. The first defense pleaded in the answer, in substance, admits the death of Roman, and that at that time he was in charge of the herding of said sheep; and alleges that after his death up to August 15, 1909, his widow, Emily Roman, was in control of said sheep, and from the later date to the taking of said sheep in replevin in this suit the defendant was in possession and control of said sheep, and denies the other allegations of the petition. For a second defense it is alleged that on June 23, 1909, Emily Roman was appointed administratrix of the estate — 106 — of Evi Roman, deceased; and that on August' 15, 1909, she for herself personally and as acting administratrix, and for the heirs of said deceased, entered into a contract with defendant leasing said sheep to him on shares for one year from said date; and that in pursuance of said contract defendant was in control and possession of said sheep from August 15, 1909, until they were taken on the writ of replevin in this suit. That he had been damaged by reason of said taking in the sum of $800. That prior to May 13, 1910, the plaintiff had not given a bond as surviving partner as required by section 5566 Compiled Statutes 1910. For a third defense it is alleged, that on August 15, 1909, said sheep were intrusted to defendant by said Emily Roman for the purpose of herding and pasturing the same, and that he did so from August 15, 1909, until they were taken from him in this suit. That the reasonable charge for such herding and pasturing was $800, for which sum he claimed a lien on said sheep as agistor or herder. The reply in effect denies the new matters pleaded in the answer. The following appear to be the facts as shown by the evidence. That the sheep were the property of Thomas and Roman, co-partners. That Roman died in June, 1909, and at that time of his death he was in charge of the sheep. That Emily Roman was his widow. That she applied to the District Court of Sweetwater county for letters of administration on the estate of her deceased husband, and the court made an order appointing her such administratrix upon giving bond and qualifying as required by law. That she never qualified or gave any bond, but soon thereafter removed from the state. That the surviving partner, Thomas, did not give a bond as surviving partner until after the commencement of this action. That the defendant knew at the time he took possession of the sheep under an alleged contract of lease between himself and Emily Roman that the sheep belonged to Thomas and the estate of Evi Roman. That he took possession under such alleged contract about October, 1909'; but there is no competent evi — 107 — dence in the record of the existence of such a contract, or that Thomas ever saw what was claimed by defendant to be such written contract, or was informed of its terms. The defendant testified that prior to the receipt of said contract and his taking possession of the sheep thereunder, he got possession of them from Tho/nas and a brother of Emily Roman. But for what purpose or on what terms he does not state. Plaintiff demanded of defendant possession of the sheep before bringing the action. On that state of facts the court found that the defendant was entitled to the possession of said sheep at the time of the commencement of the'action, and the sheep having been delivered to plaintiff under the writ, rendered judgment for defendant and against plaintiff and the sureties on his bond for $800 damages, and costs. The statute, section 5565, Comp. Stat.' 1910, provides that the surviving partner has the right to continue in possession of the partnership property and settle the business of the partnership, and to account to the executor or administrator of the deceased partner. That was his duty at common law. By section 5566, id. it is provided, “Every such surviving partner must, within fifteen days after the death of his co-partner, execute and file with the clerk of the District court, a bond to the State of Wyoming, with two or more sufficient sureties, ****** the penalty must not be less than twice the value of a partnership property,” etc. (Section 5567, id.). “In case of the neglect or refusal of any such surviving partner to execute and file a bond as provided in section 5566, then the District Court, or judge thereof, or commissioner or clerk, shall place the executor or administrator of the decedent in charge and custody of the partnership property, after the said executor or administrator shall have executed and filed a bond, as herein pro-: vided, for the execution and filing by the surviving partner, and such executor or administrator shall have the same authority and power to settle the affairs of the partnership as would the surviving partner had he executed and filed a bond as herein provided.” In this case the surviving part — 108 — ner did- not give the bond required by section 5566 prior to commencing suit. Neither did Emily Roman qualify or give bond as administratrix of the estate of Evi Roman; and there is no claim made that she gave the additional bond required by the statute to administer the partnership property. On the death of Roman, Thomas, the surviving partner, became entitled to the exclusive right of possesion and management of the partnership property. (Shields v. Fuller, 4 Wis. 102, 65 Am. Dec. 293; Smith v. Wood, 31 Md. 293). That right continued, notwithstanding he failed to give the statutory bond, until an administrator qualified and ghve the required bond. In other words, the right of the surviving partner to the possession and control of the partnership property does not cease at the expiration of fifteen days from the death of the co-partner, but such right is subject to be defeated by the executor or administrator of the estate of the deceaséd co-partner upon giving the required bond, and being placed in control of the property as provided in the statute, but not otherwise. (Teney v. Laing, 47 Kan. 297, 27 Pac. 976; Bredow v. The Mutual Savings Institution, 28 Mo. 181; Hargadine v. Gibbons, 114 Mo. 561, 21 S. W. 726). Emily Roman never having qualified or given bond as administratrix of the estate of Evi Roman, deceased, and never having given the bond required to entitle her to the possession and control of the' partnership property, had no right to its possession or control as against the surviving partner, Thomas,- and could-confer no such right upon the defendant. The only other question in the case necessary to be decided is, whether the defendant had a lien upon the sheep by virtue of- section 3754, Comp. Stat. 1910, which reads as follows: “Any ranchman, farmer, agistor, or herder of cattle, tavern keeper, or livery stable keeper, to whom any horses, mules, asses, cattle or sheep, shall be entrusted, for the purpose of feeding, herding, pasturing, or ranching, shall have a lien upon said horses, mules, asses, cattle or sheep, for the amount that may be due, for such feeding, herding, pasturing or ranching, and shall be authorized to retain pos- — 109 — session of such horses, mules, asses, cattle, or sheep, until the said amount is paid; Provided, That the provisions of this section shall not be construed to apply to stolen stock.” In the third defense set out in the answer it is alleged that the sheep were entrusted to him as ranchman, agistor and herder by Emily Roman for the purpose of herding and pasturing the same. But the evidence on his part does not tend to support that claim. He sought to prove a contract with Mrs. Roman by which he leased the sheep for one year, and there is no evidence in the record that the sheep were entrusted to him by her under any other agreement or for any other purpose. As already said he failed to prove that contract. Nor is there any allegation in the answer or any evidence in the record that the sheep were entrusted to him by Thomas for the purpose of ranching, herding or pasturing. To be entitled to a lien under the statute, the party must bring himself within its terms. The lien is purely statutory and’cannot be extended beyond its terms. (Rogers v. Currier, 13 Gray, (Mass.) 129; Howes v. Newcomb, 146 Mass. 76, 15 N. E. 123; Fein v. Wyoming L. & T. Co., 3 Wyo. 331, 22 Pac. 1150). The defendant was the only witness who testified to the terms and conditions under which he took and held possession of t'he sheep, and his testimony fails to establish that the sheep were entrusted to him for the purpose of herding or pasturing so as to bring the case within the terms of the statute and to give him a lien on the sheep by virtue thereof. It may be that defendant under the circumstances is entitled to pay for caring for the sheep; but that question cannot be determined in this action. The only questions in this action being, which party was entitled to the possession of the sheep at the time of the commencement of the action, and if the defendant Was entitled to possession the damages, if any, he sustained by reason of the sheep being taken from his possession under the writ. In our opinion the District Court erred in adjudging that the defendant was entitled to the possession of the sheep; and for that reason — 110 — the judgment is reversed and the cause remanded for a new trial. Reversed. Scott, Chief Justice, concurs. PoTTER, Justice, 'being ill, did not participate in the opinion.