Hatch v. Hart , 40 N.H. 93 ( 1860 )

Bowler, J.

In Moulton v. Robinson, and Ladd v. Robinson, 27 N. H. 550, which were actions of trespass severally brought by the landlord and his tenant against an officer, for taldng and carrying away hay cut upon a farm belonging to the landlord, while in the occupation of the tenant, under a lease which provided that all the crops should be equally divided between the landlord and tenant when harvested, except the hay, which was to be used equally on the farm, and the proceeds or gain of the stock to be divided when disposed of, it was holden that whenever, upon a lease of land, either for one crop, or one year, or for several years, the owner of the land is to receive a part of the productions of the land in lieu of rent, the contract operates and takes effect by way of reservation, and the share reserved is always the property of the owner of the land, without severance or delivery, though both of them may be stipulated for; that where the reservation is of an entire crop to the landlord, there the entire property is always in him, and he alone can bring an action for any wrong done to the crops, the obligation of the tenant to cultivate and harvest them being really of the nature of a contract for services; that where the reservation is of ■ an undivided share, the property of that share is always in the lessor by virtue of his reservation, while the property of the residue is always in the tenant by virtue of the implied grant of profits, and they are therefore tenants in common of the crop until a division, and upon the ordinary rules of law must join in an action for injuries to the joint property; but that, where the reservation is of the crops, or some part of them, to be used upon the land, the general property and right to them remains in the landlord, the tenant acquiring neither the ownership or right to sell the same, but, during the continuance of the lease, the possession remains common, because they have a common interest in the cultivation and application of them, the tenant agreeing to cultivate, harvest and use the crops for the common benefit of both ; and that, as tenants in common, they must ordinarily bring their action jointly for any injury to crops thus reserved to be used for the common benefit.

These cases were very fully and carefully considered, and the doctrines we have quoted from the opinion of the court, abundantly supported as they are by the authorities cited to sustain them, must be regarded as the settled law of this State.

It is impossible to distinguish the facts in the present case from those in the eases to which we have referred, in point of principle, so far as relates to the right of property and ownership of the hay raised upon the plaintiff’s farm. Here, as there, the hay was to be expended on the land for the joint benefit of the lessor and lessee; the general property and right to them therefore remained exclusively in the plaintiff. While the tenant remained in the possession of the farm and of the hay, under the lease, he had a common interest in the application of the hay to the joint benefit, and in trespass for an injury done to it while this possession continued, as against a plea in abatement, must have been joined with the plaintiff*.

But the case finds the evidence tended to show an abandonment of his possession of the farm and hay by the tenant, in December, prior to the taking of the hay in controversy in March, 1858, and that the tenant assented to a sale by the officer of his interest in the hay. If the tenant had abandoned his possession of the hay under the lease, or if he consented to relinquish his claim thereto, as he must have done by assenting to a sale thereof as his property by the officer, the general property and right to the possession being in the plaintiff, he might well maintain trespass alone for its subsequent removal. Whether the tenant had abandoned his possession of the hay in December, 1857, or not, his assent to its sale by the officer was a virtual relinquishment of all his right to the possession thereof under the lease, and thereafter-wards the right to its possession vested in the plaintiff* alone. The tenant had a right to hold the hay only for the purpose of applying it to the purposes designated in the lease; he never had any such interest in it as would authorize him to sell it, or an officer to attach it upon a writ against him. His interest in the hay was a qualified one, and his right of possession incident to this qualified interest. When he undertook to claim the property in the hay, and relinquished his possession of it, the plaintiff’s right of property therein gave him the right of exclusive possession thereafterwards.

The instructions to the jury were, therefore, sufficiently favorable to the defendant.

We are unable to perceive in wbat view the fact whether or not Barnard accepted the hay sold to him by the officer could have been material to the issue raised and tried between the parties upon the plea in abatement. The only material question under that issue would seem to have been, whether the tenant, Miner, had relinquished his possession of the hay under the lease, before it was taken by the defendant. Had it been material and competent to show Barnard’s acceptance of the hay, it is difficult to see how it could have been more clearly and satisfactorily done than by proving his declarations and admissions directly to that effect. But we are of opinion that the entire evidence in relation to Barnard’s acceptance of the hay was wholly immaterial, and therefore improperly admitted; yet, as we cannot discover how the defendant can have been prejudiced by its introduction, its impi’oper admission furnishes no cause for setting aside the verdict. Clement v. Brooks, 13 N. H. 92; Winkley v. Foye, 28 N. H. 519; 33 N. H. 171.

With these views, the exceptions taken to the rulings and charge of the court must be overruled, and there must be

Judgment upon the verdict.