Johnson v. Tantlinger

Cole, J. — We do not deem it necessary for ns to directly decide in this case whether a parol reservation of growing crops at the time of the sale and conveyance of the land can be shown in a controversy between the grantor and grantee respecting them. But as bearing upon this point, and negatively, see Wickersham v. Orr, 9 Iowa, 253 ; Gelpeke etc., v. Blake, 15 id. 387; Price v. Brayton, 19 id. 309 ; Van Wagner v. Van Nostrand, 19 id. 426; Warren v. Crow et al., 22 id. 315; Pierce v. Walker, 23 id. 424; Ralston v. Ralston, 3 G. Greene, 534; Nutting v. Herbert, 35 N. H. 120; Turner v. Cool, 23 Ind. 56; Todd v. Philhower, 4 Zabr. 796; Mott v. Palmer, 1 Comst. 564 (i. e.) 574; McIlvaine v. Harris, 20 Mo. 457; Wintermete v. Light, 46 Barb. 278; Brosbe v. Hyde, 37 Cal. 374; Houghtailing v. Lewis, 10 Johns. 297; Austin v. Sawyer, 9 Cow. 39; Suydam v. Jones, 10 Wend. 181; Townsend v. Weld, 8 Mass. 146; Noble v. Bosworth, 19 Pick. 314; Jungerman v. Bovee, 19 Cal. 354. As more or less in antagonism to these authorities, and bearing upon the point affirmatively, see Harbold v. Kuster, 44 Penn; St. 392; Backenstoss v. Stahler, 33 id. 251; Baker v. Jordan, 3 Ohio St. 438; Hersey v. Verrill, 39 Me. 271. Nor need we determine when and to what extent courts will treat emblements as personal property and not passing by a sale of the land. The rule is not uniform, but varies according to the situation or relation and interest of the parties. Nor need we inquire when and to what extent the consideration stated in the deed may be disputed or shown to be different. All of which have been discussed by counsel. We place our affirmance of this judgment upon the ground that it was competent for the plaintiff to plead and prove at least, in mitigation of defendant’s claim, that the wheat, corn, hay, etc., for the. plaintiff’s conversion of which as specific and mature articles belonging to defendant, he sues, were the produce of the labor and toil of [503] plaintiff, whereby they had been brought from an embryotic to a mature condition, and that this labor had been rendered with the knowledge and consent of the defendant. It was surely competent for the plaintiff to plead and prove such facts although he might not properly plead or prove the verbal agreement of reservation as set forth in the same reply. This proof might defeat the defendant’s claim for wrongful conversion of the specific articles, and limit his recovery to the value of the use and occupation of the premises, in the condition and with the emblements growing thereon when they became defendant’s property, and were received by plaintiff, up to the time plaintiff surrendered the possession. It was evidently upon this theory that the third count of defendant’s answer was grounded. Since the reply contained statements properly provable in defense of reduction of the claim made by the answer, it was not vulnerable to the demurfer, although it also contained statements which could not be properly proved and ought not to have been pleaded. Hayden v. Anderson, 17 Iowa, 158. These latter statements might have been struck out on motion as immaterial, if they were so, or the defendant might have availed himself of the same benefit (as possibly he did) by objection to the evidence as to the verbal agreement of reservation, when the same was offered by plaintiff in support of his reply. It does not appear that such evidence was admitted. In view of the whole case it is our duty to ofder the judgment Affirmed.