Johnson Trial Court Erred in the reception of evidence.
Plaintiff owned and leased a farm to one [tenant] under a
The terms of which gave plaintiff 2/5 of the corn grown.
Tenant gave mortgage to defendant bank
The tenant gave a mortgage to defendant bank on his share of the
Corn was sold at auction by the bank
The tenant's mortgaged property was sold at auction by the bank
with his permission.
At this sale a crib of corn containing 393 bushels was sold by
the bank to defendant Johnson.
If [Hanson] owned the corn it was converted by [Johnson].
Effort to Prove Corn was owned by Hanson
[Hanson] testified, over the objection of hearsay and
self-serving, that when the tenant was about through husking
corn he was on the farm and the
tenant pointed out the corn in
question (and a double crib of corn) and said: "Mr.
Hanson, here is your corn
for this year, this double crib here and this single crib here
is your share for this year's corn; this belongs to you, Mr.
Bystander heard the talk
bystander was called and against the same objection testified to
having heard the talk in substantially the same language
No question that Hanson owned some corn
It was necessary to identify the corn.
The division made his share definite.
This division and identity was made by the acts of tenant in
husking the corn and putting it in separate cribs and then his
telling Hanson which was his share and the latter's acquiescence
[passive assent without protest] therein.
Language was the very fact necessary to be proved
The verbal part of the transaction between plaintiff and the
tenant was necessary to prove the fact.
The words were the verbal acts.
They aid in giving legal significance to the conduct of the
They accompanied the conduct.
There could be no division without words or gestures identifying
the respective shares.
This was a fact to be shown in the chain of proof of title.
It was competent evidence.
It was not hearsay nor self-serving.
As between plaintiff and the tenant this evidence would be