Kelley v. Todd

Berkshire, President. This was an action of trover and conversion by the defendant in error, against Isaac Kelley, the plaintiff in error, Aaron Kelley and A. Wilson Kelley, in the circuit court of Ohio county, for 2,000 dozen sheaves of wheat. There was a verdict and judgment against the plaintiff in error for 247 dollars and 50 cents, and a verdict of not guilty as to the other defendants. The defendant in error on the 5th day of April, 1861, leased of the said A. Wilson Kelley, a certain tract of land in Ohio county, containing about two hundred acres, for the term of three years, commencing on the 1st of April, 1861, and ending on the 31st of March, 1864; for which he was to pay as rent 500 dollars per annum. Under this lease the defendant in error sowed the wheat in controversy, in the fall antecedent to the expiration of the lease, and the same was cut and gathered by the plaintiff in error, as the in-coming tenant in the summer following. On the trial of the cause, the plaintiff in error filed two bills of exceptions taken to the opinion of the court. First, For refusing to construe the lease and leaving it to the jury to determine whether or not he was liable under the same. Second, For refusing to instruct the jury that the plaintiff in error was not liable under the lease, and that the same did not give the wheat to the defendant in error, nor the right to reap and recover, the same. As the question whether or not, the defendant in error was entitled to the way-growing crop in controversy, under the provisions of the lease, was a question of law, and not of fact to be left to the jury, it was the duty of the court, when called on in the proper manner, to have construed it accordingly : but without expressing any opinion as to whether the court was bound to proceed to construction in the form the question was presented, I am of opinion that if there was any error in so refusing, it was cured or rendered immate [202] rial by tbe second instruction asked and refused, which involved, substantially, the same proposition, as by overruling and refusing the last instruction the court did thereby give its construction of the lease, and the whole controversy turns on the correctness of this ruling. Had the defendant in error, under the provisions of the lease, the right to the way-growing crop at the expiration of the same ? At the common law where land is leased for a certain number of years, and consequently the period of its termination is fixed and certain, and the lease is silent as to who shall be entitled to the growing crop on the land at the end of the term, the off-going tenant is not entitled to such way-growing crop. Harris vs. Carson, 7 Leigh, 632. In Mason, &c. vs. Moyers, 2 Robinson, 606, this doctrine is re-affirmed; but the court distinguishes that case from the former, and held that the tenant under the provisions of the lease in the latter case was entitled to the way-growing crop. The claim in the lease in this case, under which the court sustained the tenant’s right to the way-growing crop, is in substance, that the tenant was restricted to the cultivation of only one-half of the land in any one year of the term, and was to leave one-half of the same clear at the termination of the lease. The lease was for the term of three years, unless the land should be sooner sold under a decree of the court at the suit of the creditors of the lessor; and in such event the tenant was to surrender the possession at the end of the term next after such sale, and the tenant was to pay 300 dollars per annum. Judge Baldwin, in his opinion in the case says: “By the true construction of this lease the tenant was entitled to the way-growing crop, whether it expired by the eflux of time or at the end of a previous year, by reason of the event contemplated and provided for by the parties.” And in the same case, judge Allen, after stating that the premises were leased by the tenant for the purpose of cultivation, and arguing to show that it was fairly implied from this stipulation or clause in the lease, that it was the intention of the [203] parties that the tenant should have the privilege of seeding in the fall previous to the termination of his lease, says, “unless the tenant was entitled to the way-growing crop, he would have bound himself to pay a rent of 300 dollars, annually, for three years, and have been entitled to cut but two crops of small grain from which to make it. Such a contract would have been unequal; and though it was competent for the parties to enter into it, the circumstances are entitled to some consideration in ascertaining the meaning of the terms actually contained in the written agreement.” And again, “the lease restricts the tenant from cultivating more than one-half of the cleared land in any one year:” and yet again, after adverting to the fact that the only crop, that could be growing on the land at the end of the lease on the first of April, was the wheat crop sowed by the outgoing tenant of the fall previous, he concludes: “If the contract recognized the right to sow, the right to reap would follow. And in this mode the tenant would be entitled to take the three crops for which he was to pay the three years rent.” Now the provisions of the lease under consideration, as it seems to. me, are very similar to those of the lease in the case just cited: and applying the principles of construction therein declared, it would seem difficult to distinguish them, and to withdraw this case from the reasoning of the court in the case last above cited. In our case, as in the other, the lease was for three years, for the purpose of cultivation. The tenant was to pay a certain cash rent for each and every year: he was also restricted to the cultivation of a part of the cleared land, and the fields to be cultivated indicated and described in the lease, as well as the mode and manner of their cultivation: and it was expressly stipulated in the lease that, the defendant in error should sow the wheat in controversy (together with timothy,) in the fall antecedent to the expiration of his lease. It was very earnestly insisted by the attorney for the plaintiff in error that, it was a part of the contract that the defendant in error should sow this wheat as well as the tim [204] othy, for tbe benefit of tbe lessor, and tbat tbe defendant in error was no more entitled to tbe wheat than tbe timothy sowed with it. In tbis view I am nnable to concur. Sucb a construction, it appears to me, would be too barsb and unreasonable, and would defeat tbe obvious intention of tbe parties as fairly implied from tbe provisions of the contract. Tbe defendant in error’s right to sow tbe particular field in tbe fall previous to tbe end of bis term does not, as in tbe case of Mason, e. vs. Moyers, result from implication, but is expressly reserved to him: and though peremptory in form, it was evidently intended as a privilege for bis own benefit. Otherwise we must conclude that tbe defendant in error bound himself to furnish seed, cultivate and sow tbe wheat crop for tbe last year for tbe exclusive benefit of bis landlord, and yet pay him tbe full rent for tbat year. I cannot suppose be intended to do so. Tbe clause in tbe case which requires it, as tbe plaintiff in error insists, it will be perceived is in tbe precise language of tbe previous clause which designates tbe fields to be seeded in tbe fall of tbe first year of tbe lease, and must, of course, import tbe same thing — namely, a right or privilege secured to tbe tenant to seed in tbe fall of each year for bis own benefit. Tbis view, I think, also derives some force from tbe fact that, by tbe restrictions in tbe lease, tbe defendant in error was not allowed to sow any wheat in tbe fall of tbe second year of tbe lease, so tbat, non constat be would be entitled to but one crop of wheat during tbe three years of bis lease, if we held tbat be is not entitled to tbe one in controversy. Tbe fact tbat tbe timothy was to be sown with tbe wheat, does not, in my opinion, alter tbe case. It is tbe usual mode of cultivation and required by good husbandry, and the tenant therefore, was required to sow tbe timothy, as an incident to tbe wheat, tbe last as well as tbe previous years of tbe tenancy. I am of' opinion tbat tbe judgment should be affirmed. Tbe other judges concurred with tbe President. Judgment Affirmed.