Gittings v. Nelson

Mr. Justice Sheldon delivered the opinion of the Court: There seems to us to have been a clear wrong here done to the execution creditor. Certainly, Nelson could have no claim to the corn further than as security for the indebtedness from Palmer to him. Talcing the quantity of the corn received from Palmer’s share of the crop 'raised on the Hancock county land as 850 bushels, then, by the receiving of that, and the taking back of the team and wagon, Nelson was satisfied the full amount of all the indebtedness to him from Palmer, with the exception only of $67.50. After the satisfaction of this last amount from the corn levied on, there would have been left quite a margin to be appropriated for the payment of the execution, and we see no just reason why it should not have been so applied — why at least the property in the corn should not have been found to be in the constable, subject to the indebtedness from Palmer to Nelson. But we are inclined to think that the property should have been found to be in the constable simply, without even the qualification above. We do not consider that there is any lien here to be asserted against the execution, other than a landlord’s lien for rent, as given by the statute. Any agreement in the spring of 1875, that Nelson should have a lien upon the crop to be raised that year for the payment of a team and wagon sold to Palmer, or for hay and corn to be furnished for his teams, or for provisions for his family, or that the crop should be Nelson’s until such payment should be made, would have been a contract in reference to property not then in existence, and could not operate upon the crop, after being raised, as a transfer of it by way of pledge or mortgage, or otherwise, at least not until after the taking possession thereof by Nelson. At the time the execution came into the officer’s hands, September 20, 1875, Nelson had done nothing toward taking possession of the property; creditors and purchasers had the right to regard it as Palmer’s, and the execution from that date bound it as his property, unaffected by any such secret, verbally given lien or agreement, as above stated. As respects any lien for rent, the statute gives the landlord a lien on all crops grown on the demised premises during the year. The rent here for the two forty acres of land was paid by one-half of the crops, as agreed. Is the crop grown upon one of these forty-acre tracts subject, under the statute, to a lien for the payment of the $105 cash rent agreed to be paid for the house and ten acres of land? The evidence is meager in the respect of showing any connection between the two tracts of land and the house and ten acres, as being one demise. All that appears is, that also at the same time there was a lease of the house and ten acres. The fact that there was a distinct renting of the two forty-acre tracts for one-half of the crops for no specified time, but to raise a crop on shares for the season or year 1875, and that there was a distinct renting of the house and ten .acres for $105 cash rent, and for the definite time of one year from March 1, 1875, tends to show them to be separate demises. The construction is to be a strict one. We incline to the view that the evidence fails to show satisfactorily that thei’e was a lien here upon this corn grown upon one of the forty-acre tracts for the rent of the house and ten acres of land. This being so, would leave the officer’s claim of property absolute as against Nelson. The view taken renders it unnecessary to consider the effect of the giving by Nelson of the delivery bond. The judgment will be reversed and the cause remanded. Judgment reversed.