Knox & Requa v. Marshall
Before: Field
Synopsis
Where two persons enter into a contract to work a farm on shares—the one to furnish the land, teams and seed, the other to sow and harvest the grain and cut the hay, the hay and grain when harvested to be equally divided between them—they become tenants in common of the grain and hay, until a division be made. Each is entitled to possession of the whole, as against all persons except his cotenant, and can maintain an action for its recovery.
Where, in such case, one of the tenants in common gave to his creditor an order on his cotenant—who furnished the land, teams and seed—for the possession of all the right, title and interest of the drawer in the hay and grain then on the farm : Held, that the order to deliver possession to the creditor only authorized a possession in connection with the cotenant; but that the latter, having consented to a delivery of the sole possession to the creditor, and he having taken such sole possession, the creditor was entitled to hold possession of the whole crop to the exclusion of third parties ; and that other creditors of the drawer of the order cannot complain that the drawee has not sufficient title or interest in the hay and grain to maintain an action for its possession.
Where a stranger to an execution is in possession of personal property, claiming it as his own by virtue of such a transfer to him from the execution debtor as would prevent the latter himself from retaking possession, whether the transfer be by sale or pledge, a Sheriff cannot justify a seizure of the property under the writ without producing both the writ and the judgment.
Hence, where, in such case, the execution creditor causes the property to be seized by the Sheriff, and claims that the transfer from the debtor to the stranger to the writ was fraudulent and void, and made to hinder, delay and defraud creditors, and on the trial, having put in evidence the execution but not the judgment, offers evidence to show that the transfer was made for that purpose : Held, that the evidence was properly rejected—the judgment not being produced.
Query: whether such evidence was admissible in this case under the defective allegations of the answer. See facts.
Field, C. J. delivered the opinion of the Court Norton, J. concurring.
This is an action to recover the possession or value of one thousand and eighty-nine bales of hay, of which the plaintiffs claim to be the owners and entitled to the possession, and which are alleged to have been unlawfully taken and detained from them by the defendant. It arises upon the following facts : Some time in 1859, one Barnes and' one Brown entered into a contract for the working of a farm in Yolo county upon shares—Brown to furnish the land, the teams and the seed, and Barnes to sow and harvest the grain and cut the hay—the grain and hay, when harvested, to be equally divided between them. On the first of October, 1859, after the hay was cut and the grain partially harvested, Barnes executed to the plaintiffs his promissory note for three thousand two hundred and eighty-six dollars, payable thirty days after date, with interest, and at the same time executed to them, as security for the payment of the note, an instrument pledging his undivided half interest in certain wheat, which, it would seem, was then in the possession of the plaintiffs ; also, in that which he had on the farm, estimated at about two thousand sacks; also, in certain hay stored in the Sitka Ice Company’s house in Sacramento, and in the balance of the hay on the farm, which was to be gathered in, estimated at about two hundred tons. A delivery of- possession of the hay and grain did not accompany the execution of this instrument; but on the eighth of the month, upon a written order of Barnes, such possession was delivered by Brown of the hay and grain on the farm, and by a like verbal order given on the same day, possession was.also delivered of the-hay in the ice house. A few days subsequently, and whilst the plaintiffs were in the possession of the property, the defendant, who was Sheriff of Sacramento county, under certain executions placed in his hands against the property of Barnes, seized the hay in the Sitka ice house, and about the same time the Sheriff of Yolo county, under like executions against Barnes, seized the hay on the farm. By an agreement between [621]the parties, the hay thus seized in Yolo was taken to Sacramento and placed in the Sitka ice house, and there subjected to the seizure of the Sheriff of Sacramento county. The removal of the hay to Sacramento was for the purpose of preserving it; and the arrangement was to prevent such removal from affecting the respective rights of the parties to its possession. It is for the hay originally in the ice house, and the hay thus removed to it, that the present action is brought. The defendant justifies the seizure of the hay under the executions in question, alleging it was at the time the property of Barnes, the execution debtor, and that the “ pretended claim and ownership ” of the plaintiffs was “ fraudulent and void— that it is an attempt on their part to hinder, delay and defraud the creditors ” of Barnes.
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