Lewis v. Johns

By the Court, Sanderson, C. J. William G-. Chard—the father of Anita Lewis and Joseph W. Chard, the first being a married woman, and the latter a minor, plaintiffs and appellants in this case—in consideration of natural love and affection, conveyed to his said children the tract of land described in the complaint, in December, 1860. After the conveyance, Anita Lewis, and her husband, E. J. Lewis, moved upon the land in question, and resided on it from that time until the commission of the trespass alleged in the complaint, cultivating and farming the same. In 1862, a crop of wheat was raised upon about one hundred and thirty acres of the land, amounting, as charged in the complaint, to about four thousand bushels. At the time of the alleged trespass, about forty acres of this crop was cut and lying on the field, and the remainder standing ready to be harvested. When in this condition the crop was levied upon by the respondent, S. D. Johns, Sheriff of the county, at the suit of his co-defendants against the husband, E. J. Lewis, alone, and upon his separate liability. Anita Lewis and Joseph W. Chard, by his guardian ad litem, William Gr. Chard, sued for damages laid in the complaint at $3,675. The case was tried by the Court without the intervention of a jmy.

In addition to the facts already stated, the Court found that [101]“ the fanning business was carried on ostensibly in the name of the husband, E. J. Lewis; that he employed men, purchased seed wheat, and made contracts to be paid out of the proceeds of the growing crop; that he superintended the fann labor, and performed some himself; that there was no showing of any action taken by Joseph W. Chard in the business of the fann, other than the statement of the husband, Lewis, ‘that the farm was carried on by his wife and Joseph W. Chard.’ ”

The judgment was for defendants, and plaintiffs appeal.

The Court below does not find as a fact that the suits against the husband, under which the Sheriff made his levy, arose out of any transactions connected with the fanning business, and for- the purposes of this opinion we shall assume that they did not.

The theory of the respondents is that the crop of wheat in question, although raised upon land which was the separate estate of the wife, was the common property of both, and therefore liable to be taken in execution for the husband’s debts ; or, if not the common property of both, the husband at least had some interest in the crop, which could be seized and sold under execution; and -unless one branch or the other of this theory can be maintained, it is evident that the judgment must be reversed.