Agoure v. Plummer

SHAW, J.

This is an action in claim and delivery involving certain personal property, consisting of 175 tons of hay and 709 sacks of barley originally harvested from the lands of the defendants. The court below gave judgment that plaintiff was entitled to the possession of said property, from which judgment and from an order denying a motion for new trial the defendants appeal.

On August 31, 1907, defendants were, the owners of a tract of land designated as Lot B, containing 1,767 acres, of the Rancho Los, Vírgenes. On that date they entered into an agreement with one Pierre Agoure, uncle of plaintiff, whereby the land was leased to Pierre for a period of five years from November 1, 1907, at a rental of eight hundred dollars per annum, payable semi-annually in advance on the first day of April and November each year. In November,

1911, Pierre

entered

into

an agreement with the plaintiff whereby the latter was to farm a portion of the land leased by Pierre, being one tract of ninety-five acres and one tract

[545]

of sixty-five acres, the plaintiff to receive three-fourths and Pierre one-fourth of any crop harvested therefrom. The hay and barley in controversy were produced under this agreement. Plaintiff plowed a part of the two parcels in December, 1911, and the remainder in March, 1912. The sowing was completed on March 24, 1912. On April 25th, and for three days and a half afterward, he was harrowing one of the parcels. There was no proof of cultivation at any other time. There was no house on the land or on the 1,767 acres of which it formed a part. Plaintiff resided in Ventura County, two miles from the land. The parcels cultivated by plaintiff were not inclosed or in any way separated from the larger parcel. Plaintiff was not in actual possession or occupancy of the parcels, or any part thereof, except during the times aforesaid when he was plowing, sowing, and harvesting the same. The installment of rent due on April 1, 1912, from Pierre to the defendants was not paid. On April 5, 1912, defendants served on Pierre Agoure a notice to quit within three days for nonpayment of rent. The rent was not paid and thereupon the defendants on April 23, 1912, brought an action in unlawful detainer against Pierre. At the time the notice was served and from that time until the action was begun John Agoure was not at any time in actual occupancy of any part of the land. In that action the defendants here, plaintiffs there, recovered a judgment for six hundred and fifty dollars, being the amount of rent due and damages for withholding the property by Pierre, and on June 4, 1912, defendants were restored to the possession and occupancy of the land by a writ of restitution. The next day plaintiff entered upon the ninety-five acre tract, over the protest of the defendants, and cut and baled the 175 tons of hay here involved. Subsequently, defendants harvested the crop on the sixty-five acre tract, from which they realized the 709 sacks of barley here involved. All of said property remained in the possession of the defendants until claimed by the plaintiff in the course of this action.