Swithenbank v. Wood

This is an action for the partition of personal property. The defendants Charles W. Wood and Lena Wood have appealed, on the judgment-roll alone, from *Page 343 the parts of the interlocutory decree which award the plaintiff the increase of certain sheep and lambs "from and after August 26, 1926," and the wool therefrom during the same period, and also the increase of other livestock from and after July 16, 1926. The court found the following facts:

April 16, 1921, Mary Jane Swithenbank and others leased the Swithenbank ranch, together with the livestock and other personal property thereon, to the defendant Charles W. Wood for a term expiring July 16, 1926. Plaintiff then had no interest in such property. The ranch is agricultural land. The rental provided in the lease was $1600 for the first year and at the rate of $1700 a year for the remainder of the term for both the real and personal property. The lease provided that at the expiration of the term Wood was to leave on the premises a stated number of different kinds of livestock, concerning which there is no controversy. February 14, 1922, Mary Jane Swithenbank died and, upon the settlement of her estate, there was distributed to the plaintiff "an undivided one-twelfth interest in and to" the leased property, both real and personal. Prior to the expiration of the term the other owners sold all their interest in the personal property to Wood. Prior to such expiration Wood "requested plaintiff to execute a new lease of said real and personal property but . . . plaintiff refused to execute such lease." After the expiration of the term the owners, other than the plaintiff, leased their interests in the land to defendant Charles W. Wood and Ernest D. Wood, but the plaintiff refused to join therein. August 16, 1926, by mutual exchange bills of sale, the defendant Wood conveyed to the plaintiff 117 of the sheep and 25 of the lambs and the plaintiff conveyed to Wood the remainder thereof, "to be classified and determined as per said lease. . . . The purpose and intent of said parties in delivering and exchanging said bills of sale was to establish the ownership of each of said parties, respectively, in said sheep and lambs in number, rather than in undivided fractional interests." During the preceding month the owners of the land "were negotiating with each other for a partition, division, or sale of said ranch, . . . and as a part of the . . . transaction relating to said bills of sale exchange between said plaintiff and defendant Charles W. Wood, said plaintiff stated to said defendant Wood that said sheep would not be segregated or *Page 344 separated until a sale or partition of said ranch. . . . No sale nor partition of said ranch has been had." "No segregation or division of said sheep has been made as determined in said lease, or otherwise or at all." "Plaintiff did not within sixty days from and after July 16, 1926, nor within sixty days from and after July 16, 1927, demand or request possession of plaintiff's interest in said lands or premises, nor did said plaintiff at any time demand or serve any notice to quit said premises upon said defendants or either of them."