Huff v. Henry

Gill, J. — This is a replevin suit for certain corn matured and standing in the field. The issues were tried by the court, sitting as a jury, resulting in a finding and judgment for the plaintiff, and defendant appealed. It seems that one James Henry agreed with defendant Allen Henry to cultivate his (Allen Henry’s) farm —each to receive a certain portion of the crops grown. During the year Allen Henry, the owner, continued to reside on the farm and James boarded with him. It seems that Allen Henry was to, and did, furnish the farming implements, seeds and work animals, while James was to supply the necessary labor. It is doubtful then whether the relation of landlord and tenant existed, or whether James was a- mere cropper — working on the shares. Towards the close of the farming season James Henry sold to plaintiff Huff his one-sixth interest in seventy acres of corn grown on the premises. Plaintiff attempted to gather and remove the corn he had thus purchased, but Allen Henry refused to allow it on the alleged ground that James Henry owed him, etc., whereupon this action was brought. The main contention seems to be that replevin will not lie because not brought for the recovery of certain specific property, but rather for a certain proportion of a larger mass. As to this point, the case of Kaufmann v. Schilling, 58 Mo. 218, would appear controlling. There the plaintiff rented certain land of the defendant and was to have half the oats grown on the premises. The grain [344] was gathered and stored all together in the bin. The defendant, who had taken possession of the farm, denied plaintiff’s right to take his share. Plaintiff was allowed to recover his portion in replevin, the court, by Wag-nee, J., using this language: “It is undoubtedly true that in an action in the nature of replevin, for the recovery of specific chattels, their identity must be shown before they are liable to seizure. If the personal property sought to be recovered is not susceptible of identification or separation so as to be seized in kind, replevin is not the proper or appropriate remedy. But where goods are mixed and are of the same nature and value, although not capable of an actual separation by identifying each particle, yet if a division can be made of equal value, as in the case of oats, corn or wheat, then each party may claim his aliquot' part. (Story on Bailment, sec. 40.) In such case the owner is allowed to take his own share of the bulk, kind for kind and measure for measure. (Inglebright v. Hammond, 19 Ohio, 337; Ryder v. Hathaway, 21 Pick. 305; Morris on Replevin, 90.)” But the facts of the case at bar make it even stronger for the plaintiff than the one just cited. The testimony shows that when the sheriff went onto the the defendant’s farm to execute the writ, the defendant set off to the sheriff the plaintiff’s one-sixth of the corn, and the parties agreed that such part so set off was James Henry’s due and proper proportion. The corn then sued for was not only “susceptible of indentification or separation so as to be seized in kind,” but toas separated and identified by the defendant himself. Replevin, then, under the circumstances, was the appropriate remedy. The other points raised in defendant’s brief go merely to the court’s ruling on the weight or tendency of the evidence, the correctness of the court’s finding [345] on the evidence, etc. We have nothing to do with this'. The plaintiff’s abstract does not purport to set out the entire evidence, but simply states an outline of what-the counsel deemed its substance. We discover no reason for reversal. The judgment of the circuit court is, therefore, affirmed. All concur.