Stockton Savings & Loan Society v. Purvis

HAYNES, C. Action for the conversion of seventeen hundred and seventy sacks of wheat. The ease was tried by the court, and findings and judgment were against the defendant, who appeals from the judgment upon the judgment-roll alone

The findings show the following facts: Plaintiff, a corporation, was the owner of certain lands in Stanislaus county, and orally leased the same to one Dallas for the term of one year at a cash rental of $2,140. That it was further orally agreed and understood between the lessor and lessee “that the title to said! crops raised thereon during said term was to remain in said plaintiff, it being agreed and understood that the said crop was to be hauled to the nearest warehouse, and stored in the name of the plaintiff herein; that from the sale of said crop plaintiff was to receive as rent, as aforesaid, the sum of [165]$2,140 cash, and the overplus, if any, was to go to and be the property of said R. Dallas; .... and that no part of said crop should be in any way subject to the disposal of said Dallas.” Under this oral agreement Dallas sowed the lands to wheat and barley with his own personal means, and received no advances of any kind from or through the plaintiff. Before the crop was harvested, Eppinger & Co. brought suit against Dallas and wife to recover the sum of $8,935.77, and caused a writ of attachment to be issued therein, and the defendant, as sheriff of said county, levied said writ upon the whole of the crop of wheat then growing’ upon said lands, and, after harvesting and sacking the same, removed it from said lands, and refused to deliver it to the plaintiff herein upon demand. Eppinger & Co. in due time obtained judgment against Dallas. The value of said wheat, after deducting the expense of harvesting and sacking, was found to be $1,417.56, and for that sum judgment was rendered for the plaintiff.

Appellant contends: First, that the plaintiff had no such title to or lien upon the wheat as would defeat the attachment; and, second, that the claim or demand served by the plaintiff upon the sheriff was insufficient in several particulars, and did not comply with the requirements of section 689 of the Code of Civil Procedure, as amended in 1891 (Stats. 1891, p. 20). The tenant, under the terms of the agreement above stated, was the owner of the crop at the time it was attached. “A tenant for years or at will, unless he is a wrongdoer by holding over, may occupy the buildings, take the annual products of the soil, [and] work mines and quarries open at the commencement of his tenancy”: Civ. Code, sec. 819. The rent reserved in this case was not a share of the crop, whereby the landlord would have been a tenant in common with his lessee in the crops, and so in possession by his cotenant; but it was a money rent at a fixed sum, not even dependent upon the value of the crop. If the crop had been a total failure, or had been consumed by fire, Dallas would still have been liable for the stipulated sum of money as rent. In Farnum v. Hefner, 79 Cal. 575, 582, 12 Am. St. Rep. 174, 21 Pac. 955, it is said: “It is undoubtedly true, as contended, that the landlord and tenant may, by agreement, provide that all of the crops raised upon the land may be delivered to and remain the property of the landlord and be disposed of by him, and such agreement will protect the title of the landlord