
    M. B. Howell v. W. T. Pugh, et al.
    
    1. Sale; Intent; Subsequent Delivery. In a contract of sale of personal* property, the intent of the parties controls, and if they intend a present vesting .of title, the title may in fact pass at once to the purchaser, although the actual delivery thereof is to be made subsequently.
    2. Growing Crop, Sale of, When Valid. A landlord may sell and convey-to another all his rental interest in the crops grown and growing on land leased by him to a tenant prior to a division or separation of his portion of the crops from the tenant’s; and such sale, if made in good faith and for a valuable consideration, and with an intention of a present vesting of title, will be valid, even as against creditors.
    
      Error from Johnson Eisiriet Court.
    
    The plaintiff in error brought an action in the nature of trover, in the court below, against the defendants in error, and declared for conversion of one-half of eight acres of wheat in the stack, of the value of $80; one-third of twenty-two acres of corn in the field, of the value of $50; and one-third of twenty-eight acres of flax in the stack, of the value-of $100, to which the defendants pleaded a general denial;, and also that on the 11th day of July, 1879, the defendant. M. G. Miller commenced an action against John W. Berkshire before S. P. Hinman, a justice of the peace of Johnson county, to recover the sum of $52.75, with twelve percent. interest thereon from th/S' 13th day of July, 1877, due Miller from Berkshire on a promissory note, executed to-Miller by Berkshire, for the said sum of $52.75, of the date of July 13, 1879, and due ninety days after the date thereof, with interest at twelve per cent, per annum; that on said 11th day of July, 1879, said Miller caused a garnishee summons to issue in said cause to W. H. Wilson and Mackey Martin, in Johnson county; that in obedience to said summons the garnishees appeared before the justice, and made answer in writing under oath as required by law; that thereafter, on the 18th day of July, 1879, the justice gave judgment in the cause in favor of Miller against Berkshire, for the sum of $66.03 debt, and $12.85 costs; that immediately after the rendition of the judgment the justice made an order that the garnishees deliver up to W. T. Pugh, as constable, all the personal property described in the answers of the garnishees, in their possession and under their control and belonging to the said Berkshire; that on the 17th day of September, 1879, the justice issued an order of sale according to law, directed to the said W. T. Pugh as constable; that on said day said Wilson and Martin, in obedience to the order of the court, turned over the property described in their answers as garnishees to said W. T. Pugh as constable, and that at the time of the commencement of this suit, said Pugh had possession of and held the property sued for under and by virtue of the order of the justice, and that at the commencement of this action all of said personal property remained undisturbed on the real estate on which it was grown, in Johnson county.
    This case was before this court at its January Term, 1881. (25 Kas. 96.) Upon the second trial, the jury found for the plaintiff, and assessed his damages at $112.41. The following special findings of fact were returned by the jury:
    “ 1. Was the wheat, on the 8th day of July, 1879, susceptible of immediate delivery? Yes.
    “ 2. Was the flax on the 8th day of July, 1879,'mature and ripe? Yes.
    “3. On the 11th day of July, 1879, when garnishee summons was served upon W. H. Wilson and Mackey Martin, was the wheat standing in the stack and undivided? Yes.
    
      “4. On said date, was the flax standing unharvested and undivided in the field? Yes.
    “ 5. On said date, was the corn immature and standing and growing in the field unharvested and undivided? Yes.
    “6. On said 11th day of July, 1879, was any of said property capable of immediate separation and delivery in bushels without the process of harvesting or threshing? No.
    
      “7. Was the contract between Berkshire and Wilson that Berkshire was to receive as rent one-half of said wheat in the bushel, one-third of said flax, threshed, in the half-bushel, ■and one-third of said corn, husked, in the crib? Yes. .
    
      “ 8. Was any part of said wheat or said flax threshed or in the bushel or half-bushel, and in the crib prior to or at the ■time the garnishee summons was served, July 11, 1879, or before the commencement of this suit, September 23, 1879? No.”
    Upon the rendition of the verdict of the jury, the defendants excepted to the verdict, and filed a motion to set it aside, and asked that the court enter judgment on the special findings in favor of the defendants for costs, on the ground that the general verdict was inconsistent with the special findings ■of fact as found by the jury, and that the verdict was contrary to the law and evidence in the case. At the November Term, 1881, this motion was sustained, the verdict set aside, and a judgment rendered in favor of the defendants for all their •costs. Plaintiff excepted, and brings the case here.'
    
      Burris & Little, for plaintiff in error.
    
      I. 0. Pickering, for defendants in error.
   The opinion of the court was delivered by

Horton, C. J.:

The only question before us is, whether the special findings of the jury are inconsistent with the general verdict. If they are, the former control the latter and the judgment was properly rendered. If they are not inconsistent with the general verdict, the ruling of the court was erroneous, as it.was its duty to enter judgment upon the verdict, or to have set aside the verdict and findings and granted a new trial.' The trial court seems to have held, we judge, that the crops did not pass to the plaintiff under the contract of July 8, 1879; that plaintiff by such contract * holds only a claim against Berkshire for the value of the ci’ops; that by the sale he acquired only a jus ad rem and not a jus in re. If the title to the crops passed from Berkshire to plaintiff prior to the garnishee summons of July 11, 1879, plaintiff is entitled to a recovery. So long as Berkshire had the title and the right to control the property sold under the contract of July 8, 1879, it could be taken for his debts, notwithstanding any agreement he may have made to sell it, but in all cases of this character the intent of the parties controls, and if the parties intended a present vesting of title, it did in fact pass at once to the plaintiff, and that though the actual delivery was to be made at a subsequent date. In contracts of sale, the agreement is just what the parties intend to make it. The general finding of the jury finds every issue in favor of the plaintiff, and unless it appears from the special findings that it was not the intention of the parties to the contract of July 8,.1879, to vest the title in the plaintiff, such findings are not inconsistent with the general verdict, as by the general verdict we may assume that the parties intended a present vesting of the title, and that the property did in fact pass at the date of the contract at once to plaintiff. (Bailey v. Long, 24 Kas. 90.) It is true that the findings show that on July 11,1879, the wheat was standing in the stack undivided; that' the flax was in the field unharvested and undivided; that the corn was growing in the field unhusked and undivided. Yet, notwithstanding this condition of the crops, Berkshire had the power on July 8, 1879, to make a valid sale of any interest he had in the crops upon the farm leased by him, or that he expected to grow upon the farm at any time after the lease had been executed. He was not compelled to wait until the wheat was threshed and in the bushel, or the flax harvested and in the half-bushel, or the corn husked and in the crib. By the contract of July 8, 1879, if made in good faith and for a valuable consideration — and there is no finding to the contrary — if it was the intention of the parties to the contract that a present vesting of title was to take place, the title did in fact pass at once, although the actual delivery was to be made to plaintiff upon a division and separation of the crops. As the intent of the parties controls, if their intention was clearly aud unequivocally manifested at the making of the contract of sale that the title should pass at once — and there is nothing in the special findings to conflict with such an intention —Berkshire had no title and no right to the control of the property after said July 8th, and the same could not be taken for his debts. The general finding of the jury is in effect that plaintiff was the owner prior to July 11, 1879, and as a consequence he was entitled to recover his damages for any conversion of the crops by the defendants.

We decide this case upon the theory that it was apparent' to the jury that it was the intention of Berkshire to transfer . the title to the plaintiff, and of the plaintiff to accept it at the date of the contract, and that they so found by their verdict. A party may make a valid sale of a crop growing on his-premises, or the grain that a field is expected to grow. (Hobart, 132.) Cl If rights are vested or possibilities are distinctly connected with interest or property, they may be sold.” (1 Parsons on Contracts, 5th ed., p. 523.) In Bellows v. Wells, 36 Vt. 599, it was held that a lessee might convey to his lessor all the crops which might be grown on the leased land during the term, and no delivery of the crops after they were harvested was necessary, even as against attaching creditors. See Hull v. Hull, 13 Reporter, 362.

The eighth special finding is not material in this case, as it appears from the answer of the defendants that prior to September 23, 1879, (the date of the commencement of this action), Wilson, the lessee, and Martin, to whom a part of the farm had been sub-let, had separated the crops and delivered! over to W. T. Pugh, as constable, the portion claimed by plaintiff. So there was in fact before the commencement of this action an.actual division and separation of the crops, and the portion of the .crops to which plaintiff was entitled was turned over to Pugh to be sold and disposed of for the benefit of the defendant, M. G! Miller.

The judgment of the district court will be reversed, with direction to the court to render judgment upon the special findings and verdict in favor of the plaintiff.

All the Justices concurring.  