Fields v. Fields , 216 S.W. 195 ( 1919 )

Appellant, as plaintiff below, sued defendant for conversion of 166 bushels of wheat alleged to have been produced on plaintiff's farm by her tenant, and upon which she had a landlord's lien for rent due her on the premises and for advancements made to the tenant during the current year. She alleged that the defendant had levied an execution upon the said 166 bushels of wheat to satisfy a judgment held by the defendant against the tenant, and that the defendant unlawfully seized and removed from plaintiff's farm said wheat, which was subject to the payment of plaintiff's said rents and the supplies furnished. She alleged that the tenant had executed a note in the sum of $225, with interest from maturity, and that provided for $10 damages and 10 per cent. additional as attorney's fees in case of default and suit, which default had been made and suit brought. She further alleged that the tenant had executed a second note in the sum of $135, with interest and attorney's fees, in payment of advancements made during the crop season. She sued to recover said amounts.

The court filed his findings of fact and conclusions of law as follows:

"Conclusions of Fact. "The plaintiff, Mrs. Emmaus Fields, mother of Jasper N. Fields, is the owner of a farm located in Bosque county, Tex., which farm plaintiff rented to defendant Jasper N. Fields for the year 1918, for which said defendant agreed to pay plaintiff therefor about $429 as rents, and for farming implements to be used on said farm. Said defendant Jasper N. Fields made a crop of wheat on said farm in said year, 1918, amounting to 328 bushels of wheat, worth $2 per bushel.

"The defendant Schow Bros. levied an execution against the defendant Jasper N. Fields on 166 bushels of said wheat.

"That before and after the said levy was made by said Schow Bros. the defendant Jasper N. Fields sold the remainder of said 328 bushels of wheat, without paying the plaintiff the amount or any part thereof due her for rents and supplies.

"Conclusions of Law. "The plaintiff has a landlord's lien on all the said wheat levied on and sold by defendant Schow Bros. and that part of the wheat sold by defendant Jasper N. Fields.

"Plaintiff is entitled to judgment against defendant Schow Bros. only for such part of plaintiff's debt as the value of 328 bushels of wheat was to 166 bushels levied on."

It will be noted that the court concluded that the plaintiff was entitled to recover from defendant under her landlord's lien only the pro rata part of her debt which the 166 bushels levied upon bore to the 328 bushels of wheat raised on the premises by the tenant. We are of the opinion that the plaintiff was entitled to recover the full value of said 166 bushels, or so much of said value as the rent and advancements for the year amounted to. Article 5475, V. S. Civ.Stats.; Wilkes v. Adler,68 Tex. 689, 5 S.W. 497; 3 Rose's Notes, 867; Leverett v. Meeks,29 Tex. Civ. App. 523, 68 S.W. 302; Beckham v. Collins,54 Tex. Civ. App. 241, 117 S.W. 432; Zapp v. Johnson, 87 Tex. 641,30 S.W. 861; Boydston v. Morris, 71 Tex. 697, 10 S.W. 331; Jackson v. Corley, 30 Tex. Civ. App. 417, 70 S.W. 570. These authorities, and others which might be cited, hold that a purchaser of the crops of a tenant, who is indebted to his landlord for rent, supplies, or advancements is liable to the landlord for conversion and that his liability is to the extent of so much of the converted crops as may be necessary to satisfy the landlord's claim. The principle of marshaling of securities is not here involved, because the evidence shows that the tenant sold a part of the 166 bushels, disposed of by him, before the defendant levied its execution writ, to wit, June 22, 1918, and that he disposed of the remaining wheat during said June; that the plaintiff was at her home in another county when the tenant sold his wheat and when the execution was levied by defendant, and was not informed thereof until after the same had occurred.

We overrule appellees' objection to the consideration of appellant's two assignments, made on the stated ground that the same constituted no part of her motion for a new trial in this case. We are of the opinion that in her motion for new trial plaintiff assigned substantially the same errors that are presented in her brief.

For the reasons stated, so much of the judgment as awarded plaintiff recovery against defendant for only $217.15 will be reformed so as to allow her a recovery against defendant in the sum of $332, with costs of suit, etc. As so reformed, the judgment will be affirmed.

Reformed and affirmed.