Hause v. Phillips

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BUCKLES, J.

This is an action in claim and delivery to recover the possession of two mares and two yearling colts, which defendant claims to hold for a pasturage bill for them and other animals. Judgment was for plaintiff, and defendant moved for a new trial, which was' denied. The appeal is from the judgment and from the order denying a motion for a new trial.

On October 18, 1901, the defendant and one T. C. Hodgsen, then the husband of plaintiff, entered into a written lease for certain lands, which lease was for one year from and after November 1, 1901. This lease contained the following provision in relation to pasturage: “The party of the first part reserves for himself the -use and benefit of the pasturage now on said tracts of land, including the acorns upon and under the oak trees thereon, and also the right to gather and remove from said lands the crop of corn now growing thereon and also the pasturage left after the removal of said crop of com.” Hodgsen died in June, 1902. In October, 1902, and about a month before the lease would expire according to its terms, defendant agreed orally with the plaintiff, widow of T. C. Hodgsen, that she should have the land another year on the same terms contained in the written lease, and she remained in possession for another year. Another oral agreement was made between the parties that plaintiff should milk and feed and care for three cows then on the place, and said cows were to be pastured by defendant free, and plaintiff was to take the milk to the creamery, and was to have half of the proceeds and also one-half of the calves. The testimony is in the bill of exceptions, and it appears by the testimony for plaintiff from at least two witnesses that the horses of Hodgsen, and of plaintiff, when she took the lease after Hodgsen’s death were to be turned out on the pasture of the leased land free of charge, to which defendant agreed. This is denied by defendant. A question arose at the settlement for the first year as to the ownership of the stubble pasturage and the defendant and plaintiff agreed to divide it, and the stubble was sold, and they did divide the money received for it between them. Defendant’s claim at the settlement was that as he gave the plaintiff the horse pasture he should have all the stubble, and then said to her and the

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