Bernal v. Hovious
Before: Field
Synopsis
Bours v. Webster, (6 Cal. 661) that growing crops are not goods and chattels within the fifteenth section of the Statute of Frauds ; and that—not being susceptible of manual delivery, until harvested and reduced to actual possession—they pass by deed or conveyance from the necessity of the case, affirmed.
Vischer v. Webster, (13 Cal. 58.) that where two parties are living on a ranch, and one sells his interest in the growing crops to the other, the fact that both parties continue to live on the ranch, and that the vendee works for the vendor as a hired man, does not make the sale void as against creditors, affirmed; and the principle applied to this case.
Where V., an owner of land, makes a verbal agreement with B.—which they term a lease—by which B. is to have the land for three years ; V. to furnish the farming implements, wagons, horses and his share of sacks; B. took all the land, and give V. for the use of it one-third of the grain raised, after it is put in sacks, free from the expense of threshing : Held, that this agreement is not a lease, but a contract for working the farm upon shares; and that the parties are tenants in common of the grain, until a division be made.
Held, further, that a Sheriff having an attachment against Y. may levy on his interest in the grain; and to effect this, may take and detain possession of the entire quantity of grain; but he can sell under the execution on the judgment that may be recovered in the action only the undivided one-third interest of V.—the purchaser at the sale becoming tenant in common with B.
Field, C. J. delivered the opinion of the Court Cope, J. concurring.
This is an action for the possession of five hundred and twenty sacks of oats, ninety-three sacks of wheat and two hundred sacks of barley, alleged to be the property of the plaintiff, and to have been unlawfully taken and detained by the defendants; and arises upon the following facts: Some time in 1857, one José Maria Vasques entered into a verbal agreement with one Nicholas Bernal in relation to the use and cultivation of a farm situated in San Mateo county. The agreement is called by the parties a lease. The substance of Vasques’ testimony with reference to it is, that he leased the premises to Bernal for three years ; that the lease was not in writing, but that by its terms he was to furnish the'Seed, the [544]farming tools and implements, and the wagons and horses, and also the sacks for his share of the grain; and Bernal was to do the work upon the farm, and give him for the use of the land one-third of the grain raised, free from the expenses of threshing—his share to be taken after the grain was put in sacks. Under this agreement Nicholas Bernal entered upon the premises, and in May, 1860, sold and by deed conveyed his interest in the crops of wheat, oats and barley to his brother, John Bernal, the plaintiff in the present action, for the consideration of five hundred dollars. Subsequent to the sale, Nicholas continued to reside upon the premises with his family, as he had done previously, and the plaintiff resided with him. Nicholas, it would seem, on one or two occasions assisted the plaintiff upon the farm, though the latter took the entire charge and control of the work done, and hired the men employed in harvesting and threshing the grain.
After the grain had been put up in sacks, but before any division between the plaintiff and Vasques, and whilst it was yet in the field, an attachment was issued against the property of Vasques and Nicholas Bernal, and placed in the hands of the Sheriff of San Mateo county, and under it his deputy seized and removed the property in controversy. The defendants are the Sheriff and the Deputy Sheriff, and the present action is for the recovery of the property thus taken. They justify under the attachment. The plaintiff obtained judgment, and hence the present appeal.
There are two questions presented for consideration; the first of which relates to the validity of the sale from Nicholas Bernal to the plaintiff; and the second to the nature of the interest possessed by the plaintiff in the grain in controversy.
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