Cockrill v. Murphis

BARNARD, P. J.

This is an action to recover for the use of certain land during the crop year 1941-1942. The real plaintiffs, the Cockrills, will be referred to as the plaintiffs, and the original defendant, S. Stamoules, will be referred to as the defendant, although he died after judgment and his executor has been substituted.

This action involves a crop of barley raised on a certain 150 acres of land. In 1934, a corporation which owned the land executed and delivered to the plaintiffs a note for $1,962.50, secured by a deed of trust on 80 acres thereof. At the same time, it executed another note for the same amount secured by a deed of trust on the other 70 acres in favor of a Mr. and

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Mrs. Ritter, whose rights were assigned to the plaintiffs insofar as this action is concerned. These notes were due and payable on January 1, 1942, and were not paid. The powers of this corporation had been suspended in 1937 for failure to pay the state corporation tax and a number of liens for taxes, state and federal, appeared against the property.

In the fall of 1941, the defendant, without the permission of anyone and as a trespasser, entered upon said land and planted a crop of barley thereon. Early in May, 1942, as this crop was rapidly maturing, the plaintiffs employed Mr. Savage, an attorney, to obtain a settlement from the defendant and to foreclose the deeds of trust and to protect their interests either by taking possession of the land and crops or by instituting receivership proceedings. After several conferences ah agreement was reached to the effect that the defendant would pay whatever was right for the use of the land and that it should be left to one Pucheu, as sole arbiter, to determine what was right under the circumstances. Pucheu met with both parties, who gave him the facts, with a list of the expenses incurred and estimated to be incurred in producing and harvesting the crops. Pucheu later made an “award” in writing which was that the crop should be harvested, that all expenses of producing the crop should first be deducted and paid to the defendant, that one-third of the balance should be paid to the defendant and two-thirds to Mr. Savage for the owners of the trust deeds, and that the harvesting and sale of the crop should be carried on by the defendants in consultation with Mr. Savage. The defendant hurriedly harvested the crop and kept the proceeds, and this action followed.