Washburn-Wilson Seed Co. v. Alexie , 54 Idaho 727 ( 1934 )

Conrad Toetly took a lease on the premises upon which the peas involved in this action were grown, from Marie Agatha Alexie, and Martin Bertrand, her husband, from November 1, 1930, to November 1, 1933, for a cash rental, modified October 24, 1931, to provide: "for a crop share rental . . . . wherein the lessee agrees to give the lessor one-third of all crops raised."

December 28, 1932, Conrad Toetly agreed to grow approximately forty-five acres of seed peas for appellant at an agreed price and:

"Such crop or crops grown and the seed furnished by you (Washburn-Wilson Seed Company) is, and shall at all times remain your property and I agree that the entire crop must be harvested, threshed and delivered by me and that no part of such crop or crops shall be pastured, fed or cut for hay."

During the summer of 1933, before delivery of the crop to appellant, respondents Marie Agatha Alexie and Martin Bertrand, seized one-third or 7,445 pounds of the peas as their share of the crop and stored them with the respondent Worley Grain Company, whereupon, appellant brought this action in claim and delivery to recover the peas. The trial court sustained a demurrer to appellant's amended complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Appellant relies upon D. M. Ferry Co. v. Smith, 36 Idaho 67,209 P. 1066, which on the face of it unquestionably and squarely supports its position. The action there being between a landlord basing his claim on a crop share lease, as respondent does here, and the seed company on a contract declared by the court to be one of bailment with the lessee.

Respondent relies upon Devereaux Mtg. Co. v. Walker, 46 Idaho 431,268 P. 37, and Federal Land Bank v. McCloud, 52 Idaho 694,20 P.2d 201, holding that under a crop share lease, identical in principle with the one herein, the landlord and lessee are cotenants in the crop, though neither case considered the right of a seed company under a contract of bailment as herein. At the time D. M. Ferry Co. v. Smith,supra, was decided it had been declared in Eaves v. Sheppard,17 Idaho 268, 105 P. 407, 134 Am. St. 256, that prior to division and delivery of the crop by the tenant to the landlord under a crop share rental, the landlord had no title in the crop. This case was cited to the court in D. M. Ferry Co. v.Smith, supra, and since the Eaves case had held the landlord had no interest in the crop before it had been divided or delivered, there was a justifiable basis for the court holding as it did in D. M. Ferry Co. v. Smith, supra, that the bailment contract was controlling in favor of the seed company as against the landlord.

Devereaux Mtg. Co. v. Walker, supra, however, flatly overruled Eaves v. Sheppard, supra, on this point and has been in this particular affirmed and followed in Federal Land Bankv. McCloud, supra.

In overruling Eaves v. Sheppard, supra, therefore, the court eliminated the basis which supported the holding in D. M. Ferry Co. v. Smith, supra, and this case must be decided upon the proposition, that one tenant in common may not in any way dispose of the share or interest of any other cotenant without such other cotenant's consent, etc. (62 C. J. 533 et seq.)

Respondent herein being a co-owner of any crops to be grown upon his land, his cotenant the lessee could make no contract with appellant affecting his title to such one-third interest, therefore, because D. M. Ferry Co. v. Smith, supra, has already in effect been overruled by Devereaux Mtg. Co. v.Walker, supra, we must recognize it has not since that time been effective as against the landlord in a situation as herein, though undisturbed as defining the rights between the seed company and the party contracting with it.

Judgment affirmed.

Costs awarded to respondents.

Wernette, J., and Johnson, D.J., concur.

Petition for rehearing denied.