Gossett v. Drydale

Ellison, J. This action is replevin for wheat in a granary. The court sustained a demurrer to plaintiff’s testimony, and he comes here for relief.' The facts were these: One Schuster owned the farm upon which the wheat was grown ; he rented it to- one Smith during the year 1889. In the fall of 1889, Smith sublet, without Schuster’s consent, nineteen acres to plaintiff, which he sowed in wheat. Schuster rented the farm to defendant for the year 1890, defendant having no notice of the plaintiff’s connection with the wheat, that is, no notice [433] was shown. After plaintiff sowed the wheat he met with Schuster and. told him of it; Schuster, in effect, assented to or acquiesced in what Smith and plaintiff had done. Defendant was in possession of the farm from March, 1890, and harvested the wheat. There is nothing here to show what right or authority Smith had to sublet or arrange for the putting in of a crop which would mature the following year. Plaintiff can have no greater right than Smith. If we assume that Smith was a tenant from year to year (and we certainly ought not to assume more than this), it would give him no authority whatever to incumber the farm with a crop for the following year. The right to carry away growing crops or emblements •* never exists where the tenancy is for years, and is to be terminated at the expiration of a certain period, for if in such case the tenant, with his eyes open, sows corn which he knows cannot become ripe until after the expiration of his lease the law will afford him no relief” (Taylor’s Land & Ten., secs. 536, 537, 538), so if Smith should be considered (from the testimony) as a tenant from year to year, as construed under our statute, the law quoted is quite as applicable. II. But in another view plaintiff has no right to recover. He has not shown a right to the possession of the land upon which the wheat was sown, and has fa.ilp.rl to show that he remained in possession and harvested the wheat. The testimony shows the contrary. This, under the principle stated in Adams v. Leip, 71 Mo. 597; Jenkins v. McCoy, 50 Mo. 349, is enough to show that he has not a right of property in the wheat. III. Again, plaintiff’s showing discloses that he only claims title to two-thirds of the wheat by virtue of a renting from Schuster whom he seems to claim as his landlord, after the conversation had with him. It is apparent from the case that defendant was representing Schuster as well as himself, in holding the wheat, [434] and in preventing plaintiff from taking it. If, therefore, plaintiff had any claim on the wheat it would be as tenant in common with his landlord, Schuster (Kamerick v. Castleman, 23 Mo. App. 481; Moser v. Lower, ante, p. 85), and as such he cannot maintain this action. Pulliam v. Burlingame, 81 Mo. 111; Lisenby v. Phelps, 71 Mo. 522. IY. We do not see that the conversation had between plaintiff and Schuster added anything to his rights. It was after he had sowed the wheat. It was a mere barren conversation producing no action and based on no consideration. The judgment must be affirmed. All concur.' .