56 Connecticut, 374. - 1888.
Beardsley, J. - This is a complaint in trespass, in which the defendants appeal from an adverse judgment in the Court of Common Pleas.
The material allegations of the complaint are that one John R. Bradley was tenant for life of a certain tract of land, of which the defendant George R. Bailey was tenant for life in remainder; that John B. Bailey, in the month of April, 1885, leased the tract to the plaintiff for the term of three years; that the plaintiff sowed a portion of the tract with winter rye on the 18th of September, 1885; and that John B. Bailey died on the 20th of September, 1885, and that George R. Bailey and the other defendant by his direction, in the month of June following plowed in and destroyed the crop of rye then maturing. The truth of these allegations of the complaint was admitted upon the trial except that the defendant claimed that the rye was sown on the 19th instead of the 18th day of September, 1885, which, however, is immaterial.
The only question which we are called upon to consider arose under the issue formed by the plaintiff's traverse of the second answer to the complaint, the material part of which is as follows: The defendants say that if the plaintiff did anything upon said premises on September 18th or 19th, 1885, he did the same with full knowledge that said John B. Bailey was then dying; that if he did any thing it was nothing more than to harrow the soil in a hasty and superficial manner immediately after he had dug his crop of potatoes from the same, and to scatter a few seeds upon the same, without having first plowed and manured the same, as is customary and proper with the farmers in this state, and at an untimely season of the year, and without laying the same down to grass, as is customary and proper; all of said acts of the plaintiff being for the purpose of defrauding said George R. Bailey in his use of and right to said land after the death of said John B. Bailey.
Upon the trial of this case to the jury the plaintiff, in reply to inquiries made by the defendants upon cross-examination, described the manner in which he prepared the ground for the crop. The defendant afterward asked his own witness this question, " What is the customary way of sowing rye and preparing the ground for it? " The court excluded this question upon the objection of the plaintiff that there was no established custom and that it was immaterial. The defendants claimed the testimony to show that the land was not prepared in the customary way as a part of the alleged defense. This ruling of the court is assigned for error.
In support of the allegation in the answer that the plaintiff knew that Bradley, the tenant for life, was dying when he sowed the crop, the defendants called Dr. Webb, the physician who attended him during the month of September, 1885, and who, after describing his symptoms, testified that for the last week or more of his life he was gradually failing every day, growing weaker and nearer to his end every day, and that this was apparent to every one who had common sense.
It was admitted that at the time of his death, and for several months before, he resided with the plaintiff.
The defendants then offered several witnesses to testify - one, that Bradley appeared to be dying on the 16th and 17th of September, when the plaintiff was present; another, that the plaintiff's attention was called by him to Bradley's condition on the 18th of September, 1885; another, that the plaintiff had said on the 18th and 19th of September that Bradley could not live through the night; and another, that the plaintiff had said a few days before Bradley's death, that he was very low. All of this evidence, except the testimony of Dr. Webb, was objected to by the plaintiff and excluded. The plaintiff, against the objection of the defendants, was permitted to testify in contradiction of Dr. Webb, that the doctor had told him, as late as the last week of Bailey's life, that " he might live for quite a long time; that he might get out of it and live for a year or two, and perhaps longer, and might not live so long as that."
The court charged the jury on this point as follows:
"The question then is, did the plaintiff know for a certainty that his lessor, the tenant for life of the estate, would die before he could mature that crop? If we find that there was any uncertainty in regard to the duration of the life of Mr. Bailey, you must find for the plaintiff. If you find that the time of his death was so certain that he (Bradley) had no doubt in regard to it, then your verdict should be for the defendants."
The several rulings of the court and the charge to the jury referred to, are assigned for error. We do not think that either of them afford the defendants any ground of exception. On the contrary, we think that the charge was too favorable to the claim of the defendants. It was adapted to the issue between the parties, and would, perhaps, have been unobjectionable if that issue had been a material one; but the issue was an immaterial one and the plaintiff would have been entitled to judgment upon the conceded facts if it had been found in favor of the defendants.
If it were possible for the plaintiff to have had absolute knowledge beforehand of the time of Mr. Bailey's death, and he had known that it would occur before the maturity of the crop which he was planting, his right to it would not be thereby defeated.
In Co. Litt., p. 55 b., note 1, the law is thus stated: "So, therefore, if tenant for life soweth the ground and dieth, his executors shall have the corn, for that his estate was uncertain and determined by the act of God; and the same law is of the lessee for years of the tenant for life." Blackstone says, (2 Com. 122): " Therefore, if a tenant for his own life sows the land and dies before harvest, his executors shall have the emblements or profits of the crop; for the estate was determined by the act of God, and it is a maxim of the law that actus Dei nemini facit injuriam." We are referred to no case in which the exception claimed by the defendants has been made to this rule during the centuries of its existence.