Fowler v. Hawkins

Hanna, J. Tins case has been here before. See 11 Ind. 316, for facts. It was then decided, that a Iona fide purchaser, for a valuable consideration, might acquire from Wright, the lessee, a title to the corn in controversy, if sold by him without having procured the consent of Hawkins, the.lessor. Upon the second trial, the material question was, whether such a sale had been made by the lessee. Wright, and Ford, his immediate vendee, were both witnesses, and their evidence upon that point was contradictory. The jury found for the plaintiff; and we cannot disturb the judgment on the ground that it was not supported by the evidence. If is said the lease between Hawkins and Wright ought not to have been admitted as evidence. We do not perceive that there was any error in that ruling. Whether the lease could have force as evidence, toward showing a lien, depended upon whether it was followed by other testimony, as to notice, &c. . But the Court does not, ordinarily, attempt to control a party, as to the order in which he shall introduce [212] his evidence. It was competent for another purpose, namely, to sustain Wright as to the amount of rent reserved. B. C. Gregory, II. W. Chase and J. A. Wilstaeh, for the appellants. W. C. Wilson and Geo. Gardner, for the appellee. The following instruction it is argued is erroneous: “The real question in this case, and, indeed, the only material one for the consideration of the jury, is whether the witness Wright, sold to the witness Ford, through whom the defend ants claim title, the corn which was to be delivered to Hawkins for rent; and if you shall believe from the evidence that Wright reserved the corn, which was to go to Hawkins, then Ford could not, by taking possession of all the corn as a wrong doer, and selling it to Fowler and Earl, conifer any title on them as against Hawkins, which would avail them in this case.” It is said that this charge ignores the fact that Hawkins had never been put in possession of the corn which he was to have for rent; and, consequently, does not require him to depend upon the strength of his title to recover. There are other instructions which fairly presented the right of the lessee to sell the com by him raised, even including that which was to be paid as rent; the rights acquired therein by the purchaser and those claiming under him; thal the same was superior, in behalf of a bona fide purchaser &c., to the lien attempted to be created in fayor of the lessor. We think, taking the instructions all together, that the question was presented in a manner not to be misunderstood by the jury, whether the corn in controversy, the rent com, was sold by Wright to Ford, or not, and whether it was taken possession of by Ford, or those claiming under him, under color of light, or as naked wrong doers ? We suppose the provisions of'the lease attempting to secure a lien upon the whole crop, would be inoperative as to good faith purchasers, without notice, &c.; but certainly, the lien would be good against a naked wrong doer, who would have no claim but possession, derived through his wrongful act, as to the crop, or that portion of it, the possession of which was thus acquired. Per Curiam. — Hie judgment is affirmed, with costs.