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In proving title to corn in the crib on a farm owned by plaintiff it is not hearsay nor self-serving to prove conduct of parties for the purpose of showing a division; to also show that the tenant pointed to the crib and told the plaintiff that the particular crib of corn was his share, the language under the circumstances being a verbal act.
The property owner leased his farm to the tenant, in exchange for a portion of the corn harvested from the farm. The tenant gave a mortgage on his share of the corn to the bank, and, with the tenant's permission, the corn was eventually auctioned to the buyer. The property owner alleged that the buyer was in possession of his share of the corn. The trial court permitted the property owner to testify as to his conversation with the tenant regarding the division of the corn. The trial court ruled in favor of the property owner. The buyer appealed.
Did the trial court err in permitting the property owner to testify as to his conversation with the tenant regarding the division of the corn?
In affirming the judgment, the court ruled that the trial court did not err in permitting the property owner to testify as to his conversation with the tenant regarding the division of the corn. The court noted that the tenant's acknowledgement that the corn that was placed in holding bins was the property owner's was the very fact that established the identity of the property owner's corn. Moreover, the court emphasized that the testimony would have been admissible in an action between the tenant and the property owner to determine the identity of the corn, and would not have been considered hearsay. As such, it was admissible in an action against the buyer, who had acquired the corn from the tenant.