Lee v. Bandimere

HUMPHRIES, J. On the 26th day of December, 1916, appellee brought a replevin suit against appellants, W. D. and Oscar Lee, in the Jonesboro District of Craig-head County, to recover the possession of a growing crop on the southwest quarter, and southwest quarter of the southeast quarter,' section 24, township 14 north, range 1 east, in said county, alleging ownership in himself, and that the Lees were in the unlawful possession thereof. Appellee filed a bond, procured an order of delivery, and, under "said order, received the proceeds of the crop. The Lees answered admitting possession, but denying the wrongful detention of the crops and appellee’s ownership thereof. J. IT. Hamilton filéd an intervention, claiming a lien for $113.84 on the crops under a mortgage executed by the Lees to him. The suit proceeded to trial on September 10, 1917, and resulted in a judgment against the Lees in favor of J. H. Hamilton for $113 and a judgment of dismissal of the replevin suit for want of jurisdiction, without adjudicating the property rights. From that judgment an appeal was prosecuted to the Supreme Court, which appeal was dismissed on the 17th day of June, 1918, upon the ground that the dismissal of the suit by the circuit court was favorable to appellants. It was also ruled on that appeal that the appellants could not insist upon a reversal of the judgment of dismissal on account of the failure of the circuit court to render a judgment for the return of the property, or its value, seized under the writ and delivery to appellee, for the reason that no request for the return of the property, or its value, was made by appellants in the circuit court. Appellants procured a mandate from the Supreme Court and filed same at the September term, 1918, of the circuit court. After the adjournment thereof and prior to the commencement of fhe succeeding term of the circuit court, appellants filed a motion to have the proceeds of the crops of 1916 delivered to them. A response was filed to the motion, setting up, • in substance, (1) that the judgment of dismissal of the replevin suit, rendered by the circuit court at its September, 1917, term of court, became final upon the adjournment thereof and that the court was without jurisdiction at a subsequent term of court to render an alternative judgment for the property, or its value, seized under the writ of replevin, the proceeds of which were later delivered to appellee; (2) that, on October 4, 1916, appellee had filed an ejectment suit against the Lees for said lands, at a time when the 1916 crops were standing thereon, upon the ground that the Lees were trespassers, which was tried on the 11th day of September, 1917, and resulted in a judgment in favor of appellee. The matter was heard by the court upon the motion, response, proceedings had and done in the replevin and ejectment suits, and an agreement to the effect that at the time of the institution of both the replevin and ejectment suits the crops of 1916 had not been, severed, but were standing upon the ground. The circuit court refused to render an alternative judgment against appellee for the property, or its value, and dismissed the motion. From the judgment dismissing the motion, an appeal has been duly prosecuted to this court. (1-3) The circuit court took the view that it had no jurisdiction to entertain the motion to have the proceeds of the crops delivered to appellants after adjournment of the term at which the replevin suit was dismissed, and that appellants’ remedy was by independent action against appellee and his bondsmen. Appellants contend that they had a right to summarily proceed for the return of the crops, or their value, upon the dismissal of the replevin suit, or at any subsequent term of the circuit court. Be that as it may, the undisputed facts in the case support the result reached by the court. It is agreed that the crops were standing and ungathered on October 4, 1916, when the ejectment suit was instituted. The issues in that possessory action were determined in favor of the appellee upon the ground that these appellants were trespassers. Unsevered crops raised by a trespasser belong to the owner of the land. A trespasser obtains no title or right to crops raised by him on the lands of another until he has severed same. 15 Cyc. 183; 8 Am. & Eng. Enc. of Law (2 Ed.), p. 3. Appellants insist that the appellee is precluded and barred from claiming the standing crops of 1916 because he only asked, in his ejectment suit, for the rents of 1913, 1914 and 1915. It is said that his request for rents for those years amounted to a waiver of his right to the standing crop of 1916. The institution of the ejectment suit was an assertion of his title to the standing crops for that year, and in no sense a waiver of his claim or right thereto. The effect of the ejectment suit was to claim title to the crops of that'year, standing upon the ground, as a part of the realty. His claim of rents in the ejectment suit for prior years was not an election to abandon any claim or right to the crops of 1916. Had he claimed rents only in the crops of 1916, the omission to claim any rents for that year might have been construed as a waiver thereof. Not so, however, where he claimed the title to the crops upon the theory that they were a part of the real estate. No error appearing, the judgment is affirmed.