Thomas v. Noel.

rule. In the present case Armstrong was as much the tenant of Grant as though the rent was payable in money. There was no partnership, one was tenant and the other landlord. For the error in refusing a continuance, the judgment must be reversed.

Reversed.

No. 9132.

THOMAS v. NOEL.

EMBLEMENTS.-Sheriff's Sale.-Redemption.-Landlord and Tenant.-Crops.The law favors the right of one who sows to reap, but, if he knows he can not reap before the expiration of his right of possession, he sows at his peril; so, where an execution defendant remains in possession of real estate sold on execution during the year for redemption and puts in a crop which will not mature until after the year expires, and he fails to redeem, he is not entitled to such crops.

From the Posey Circuit Court.

A. P. Hovey and G. V. Menzies, for appellant.
W. P. Edson and E. M. Spencer, for appellee.

WOODS, J.-The appellant sued the appellee for an alleged unlawful conversion of wheat. The evidence in the case consisted of an agreed statement of the facts, made a part of the record by an order of the court, and the question discussed by counsel is whether, upon the facts so stated, the decision of the court in favor of the defendant was right.

The following are the facts:

On the 4th day of March, 1879, the land upon which the wheat was grown was duly sold by the sheriff to the appellee, by virtue of an execution issued upon a judgment against the appellant, who owned and was at the time in possession of the land, and remained in possession until March 15th, 1880, when the defendant, to whom, in default of a redemption from the sale, the sheriff had made a deed, took possession; the crops of wheat and corn which matured in the summer and fall of 1879, the appellant took, and in November, 1879, sowed wheat

Toler et al. v. Keiher.

upon the land, and in the summer of 1880 re-entered upon the land and undertook to reap the crop from the seed so sown, but was forbidden to do so by the defendant. The plaintiff nevertheless cut a part of the wheat, and the defendant, who cut the remainder, carried it all away, to wit, 180 bushels, worth 60 cents per bushel.

The appellant clearly had no right to any part of the wheat. While the general rule, adopted for the promotion of agriculture and husbandry, is that the one who sows shall reap, it is equally well settled that the tenant who sows, knowing that he can not reap before the expiration of his tenancy and right of possession, does it at his peril.

or

The position of one whose land has been sold on execution and whose right of possession must expire at the end of a year from the sale, unless he redeems, can not be better. Heavilon v. Farmers Bank, etc., ante, p. 249. It may be said that he intended to redeem, and was prevented by unforeseen and uncontrollable causes; but the law can not enquire into the good faith of such a pretence. The party in such situation must know, at least make his own estimate, of his ability to redeem, and if he chooses to put out crops which he may not reap within the year given him to redeem, without securing by agreement with the purchaser of the land the rights of a tenant after the expiration of the year, he must suffer the consequences. See Taylor Landlord and Tenant, sections 534-6; 1 Washb. Real Prop. (3d ed.) 118-124.

Judgment affirmed, with costs.

No. 9274.

TOLER ET AL. v. KEIHER.

SPECIAL VERDICT.-Instructions.-Practice.-Where a special verdict is demanded, it is error to instruct the jury generally concerning the law of the case, but instructions as to the nature of the action and issues, form of verdict and general duties of the jury are proper.

Toler et al. v. Keiher.

SAME.-Harmless Error.-Where a special verdict is demanded, it is error

to direct the jury to return also a general verdict, but this will be cured if the court afterwards disregard such general verdict and act only on the special verdict.

SAME. Where a jury return a special verdict which is imperfect by the omission of a formal conclusion, the court may instruct them as to the same, and require them to retire and add it.

SUPREME COURT.- Harmless Error.- Where it affirmatively appears by the record of the whole case that a judgment is right on the merits, it will not be reversed for harmless intermediate errors, such as giving instructions as to the law of the case or requiring a general verdict also, where a special verdict has been demanded.

From the Union Circuit Court.

T. D. Evans, for appellants.
L. H. Stanford, for appellee.

BICKNELL, C. C.-This was a suit upon a note and mortgage by the appellee against the appellants.

The note was dated February 11th, 1878, and was payable to the order of the appellee two years after date, at the National Bank of Liberty, Indiana, for $2,320.40, with interest at ten per cent. from date, and five per cent. attorney's fees.

It was therefore due on the last day of grace, to wit, on February 14th, 1880, Benson v. Adams, 69 Ind. 353; and it bore interest at ten per cent. until maturity, and afterward at six per cent, Richards v. McPherson, 74 Ind. 158; and the amount of the attorney's fees could not exceed five per cent. on the amount due on the note. In Smiley v. Meir, 47 Ind. 559, this court said: "The note, which was made part of the complaint, itself fixed the amount of the attorney's fee, and was, we think, in substance, the same as if it had been alleged in the complaint that a reasonable attorney's fee was ten per cent. on the amount due on the promissory note."

The defendants answered in six paragraphs, to all of which, except the first paragraph, the plaintiff replied by general denials.

In the first paragraph the defendants admit that the plaintiff has a good cause of action on the note and mortgage for

Toler et al. v. Keiher.

$2,280.40, with interest at ten per cent. from the date of the note until its maturity, and afterwards at six per cent.

The plaintiff replied to this paragraph, admitting all its material allegations, and demanding judgment and foreclosure for $2,280.40, with ten per cent. interest from February 11th, 1878, to February 14th, 1880, and six per cent. afterward, and five per cent attorneys' fees, making in all $2,855.20.

The plaintiff also moved for judgment in his favor for the amount admitted to be due as aforesaid. This motion was overruled by the court. The issues were tried by a jury, who, at the request of the defendants, were directed by the court to return a special verdict, which they did, as follows:

"We, the jury, having been required by the court to find a special verdict, do find the facts in said cause to be as follows:

"1. That on February 11th, 1878, the defendant George Toler was indebted to the plaintiff for work and labor and money loaned, $602.40.

"2. That on said day the plaintiff loaned said defendant the further sum of $1,678.

"3. That of the latter sum the plaintiff borrowed $800 from the Union County National Bank, the defendant George Toler agreeing to pay the excessive interest over ten per cent., which the bank charged the plaintiff.

“4. That the plaintiff included in the note in suit the said $602.40, and the said sum of $1,678, and the sum of $40 to cover the excessive interest he might have to pay the bank.

"5. That said plaintiff paid said bank, on account of such excessive interest, only $2.80.

"6. That there was no fraud in the execution of the note or mortgage.

"7. That the mortgage in suit was executed in good faith to secure the payment of the note.

"8. That no part of the money due on note or mortgage was ever paid.

VOL. 81.-25

Toler et al. v. Keiher.

"9. That on February 11th, 1880, James P. Kennedy, cashier of the First National Bank of Liberty, tendered to plaintiff the principal, with six per cent. interest from the date of the note, upon condition that said plaintiff would surrender to him the note and cancel the mortgage.

"10. That on the 14th of February, 1880, said Kennedy tendered to plaintiff's attorneys, for the plaintiff, the sum of $2,555.19, in full payment of the note and mortgage in suit, upon condition that the note be surrendered and mortgage. cancelled.

"11. That there was no other tender than as above shown. "12. That the defendants, or either of them, never offered to rescind the contract by a tender of the money received from the plaintiff, as the consideration of the note, prior to February 11th, 1880.

"13. That the actual principal of the money that George Toler received was the said sums of $602.40 and $1,678, making.

And interest on same for 2 years, at 10 per cent.
And interest on same for 8 mos. 11 dys, at 6 per cent.
The 5 per cent. att'y's fees agreed on note.

Making total amount due .

. .

$2,280.40

456.08

95.38 141.59

$2,973.45

"If, upon the above facts, the court shall be of opinion that the law is with the plaintiff, we find for the plaintiff and assess his damages at $2,973.45, and the foreclosure of the mortgage. If the law is with the defendant, we find for the defendant." With this special verdict the jury also returned the following general verdict:

"We, the jury, find for the plaintiff and assess his damages at $2,973.45 against the defendant George Toler, and for the foreclosure of the mortgage against both of the defendants."

The plaintiff moved for judgment on the special verdict; the defendants moved for a new trial; the motion for a new trial was overruled and judgment was rendered upon the special verdict. The defendants appealed; they have assigned nine