GEORGE WALKER v. E. L. WARD.1

Error to Direct Verdict.

June 5, 1908.

Nos. 15,642-(65).

In this action of claim and delivery the defendant in his answer justified the seizure and detention of the property as sheriff by virtue of an execution against a third party, who it was alleged had an interest therein. The trial court, upon the evidence, directed a verdict for the plaintiff. Held error.

Action in replevin in the district court for Sherburne county to recover from the sheriff thereof certain potatoes. The case was tried before Giddings, J., who directed the jury to return a verdict in favor of plaintiff. From an order denying his motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed and new trial granted.

H. S. Locke, for appellant.
J. D. Sullivan, for respondent.

START, C. J.

Action of claim and delivery. The plaintiff in his complaint alleged generally, without disclosing the source of his title, that he was the owner of a certain quantity of potatoes and entitled to the possession thereof, but that the defendant detained the possession thereof from him. The answer justified the taking and detention of the potatoes by virtue of a writ of execution upon a judgment for $236.77 against a third party, Howard Walker, which was duly issued and delivered to the defendant as sheriff, and alleged that by virtue thereof he levied upon and was holding the potatoes at the time of the commencement of the action, and, further, that the potatoes were then the property of Howard Walker. The reply was a general denial of the new matter alleged in the answer. On the trial, at the close of the evidence, the trial judge directed a verdict for the plaintiff for the possession of the potatoes. The defendant appealed from an order denying his motion for a new trial.

On the trial it was admitted that the potatoes were raised upon a farm of which the plaintiff was the owner, and had been for twelve years; that the farm had been occupied for some eight years by the plaintiff's son, Howard Walker, the judgment debtor; that he raised the potatoes in question thereon; and that they were of the value of $560. It was, however, claimed on the trial by the plaintiff that his son Howard and his wife lived on and worked the farm for him, pursuant to a written contract between the parties, as his employees, for the agreed wages of $300 per year, with the right to keep their horses, cows, hogs, and chickens on the farm, and have what they could make out of them, but the son was to furnish the teams and machinery to carry on the farm for the plaintiff, and that the potatoes in question were raised on the farm pursuant to such contract; hence he was the absolute owner thereof. The defendant's contention was to the effect that the evidence was sufficient to justify the jury in finding that the written contract did not express the real contract between the parties, but that it was a device to defraud the creditors of the son; that the son was not occupying the farm as his father's employee and agent, but that their relation was that of owner or renter and cropper or tenant of the farm; and that when the levy was made on the potatoes the son had an interest therein to the extent of $300 at least; and, further, that the written contract was in the nature of a chattel mortgage, which was void because it was not acknowledged, nor was it filed within the year that the crop was raised. This last claim is not here relevant, for the plaintiff does not claim any lien upon any alleged interest of the judgment debtor in the potatoes, but his claim is that he was the sole and absolute owner of the whole thereof.

The question, then, is whether the trial judge should have submitted to the jury the question whether the judgment debtor had any title to or interest in the potatoes at the time they were levied upon by the defendant. If the undisputed evidence was conclusive in favor of the plaintiff on this question, a verdict for the plaintiff was rightly directed; but if there was any evidence, direct or circumstantial, tending to show that the judgment debtor had an interest in the potatoes, then the question should have been submitted to the jury. The fact that the title to the land on which the potatoes were raised was in the plaintiff was material evidence; but it was not of controlling importance, for the title to land may be in one person and the crops raised thereon in another party. Hossfeldt v. Dill, 28 Minn. 469, 10 N. W. 781. Nor is the fact that the written contract shows on its face that the relation of the plaintiff and the judgment debtor was that of employer and employee, and that each of them testified, in general terms, to the effect that the father was the owner of the potatoes and that the son had no interest therein, necessarily conclusive of the question at issue, if the acts of the parties and the circumstances attending the transaction, as shown by the evidence, were such that reasonable and impartial men fairly might draw different conclusions therefrom.

Upon a consideration of the whole evidence we are of the opinion that, while this is a border case, the acts of the parties and the circumstances of the case required the submission of the question to the jury. There was evidence tending to show that the son had been in possession of the farm and carrying it on for several years prior to May, 1905; that he furnished at his own cost all teams, tools, and machinery necessary to farm the land; that he kept thereon such cows, horses, hogs, and chickens as he saw fit, and retained the profits therefrom; that he hired and paid all necessary help to carry on the farm, sold all the products of the farm at such times and for such prices as he saw fit, and out of the proceeds thereof retained for himself the amount of the disbursements made by him and $300, his alleged wages, and accounted to the plaintiff for the balance; and, further, that while he was so in possession of the farm, and on May 6, 1905, and seven days before the judgment upon which the execution was issued was entered, the plaintiff and his son entered into a written contract, which was filed, to the effect that the son and his wife should work for the plaintiff on the farm, describing it, commencing April 1, 1905, and that the plaintiff should pay them the sum of $300 per year; that the plaintiff then knew that his son was in debt, and "getting a little back-behind," and he "thought it best to fix it up." The inference to be drawn from the circumstances of the case and the acts of the parties, considered in connection with their testimony, would depend largely upon their credibility, which is ordinarily a question for the jury. As there must be a new trial, we refrain from discussing the evidence.

With reference to such trial it is proper to say that it was not necessary for the defendant to specially plead that the plaintiff's claim of title to the property was fraudulent, for the source of his title was not disclosed in the complaint. The rule in such cases is that where, in an action of replevin, the complaint discloses the source of the plaintiff's title, if the defendant wishes to attack it as fraudulent, he must plead the fraud; but if the complaint is silent as to the source of the plaintiff's title the rule is otherwise. Livingstone v. Brown, 18 Minn. 278 (308); Tupper v. Thompson, 26 Minn. 385, 4 N. W. 621; Furman v. Tenny, 28 Minn. 77, 9 N. W. 172; Kenney v. Goergen, 36 Minn. 190, 31 N. W. 210.

Order reversed, and new trial granted.

ed by objectors to the establishment of the ditch. It is held: (1) This was error. (2) The objectors were not prevented through estoppel or election of remedies from proving their objections. (3) Certiorari lay to present the record for review.

Petition of August Heinz and others for a writ of certiorari to Thomas S. Buckham, district judge, and others. Motion to dismiss writ denied, and cause remanded.

A petition was filed in the district court of Steele county on August 28, 1907, for the establishment of a described judicial ditch in the counties of Waseca and Steele. Notice was given of the first hearing, set for October 14, 1907, requiring objectors to "show cause, if any there be, why said ditch, drain, or watercourse should not be constructed in accordance with said petition." On December 24, 1907, after hearing the evidence, the district court found, inter alia, that said ditch was necessary for the protection of public health, convenience, and welfare of the county, and would be of public utility; that the estimated benefits to be derived from the construction of said work were greater than its total cost, including damages; and that the petitioners were entitled to have the judicial ditch established as described and prayed for in said petition. It was then ordered that the ditch be established as described in the petition, and that there be constructed said ditch, and in addition an extension, about three reales in length, prolonging the ditch described in the petition to Straight river, The court named a surveyor and viewers to perform the duties required by statute of them respectively. The engineers and the viewers so appointed made and filed their respective reports. Subsequently notice of a second hearing on March 30, 1908, was giv

At this hearing each of the relators appeared, and filed a claim for dameges ever and above the amounts awarded by the viewers, and male other sbjeriors. On the hearing the court excluded all ex force offered by objectors tending to show that the ditch will not st bserve poble interests, that the benefits will not exceed the damages and that a certain lake is a guble body of water, not authorized by sure to be framed, on the express theory that the order made on the first bearing only established the fitch and ordered it to be conserected On March 31, 1908, the court Eed its order affirm