Bland, P. J.
This case is here the second time by appeal. The opinion on the first appeal is found reported in 53 Mo. App. 493. On the second trial, at the close of the evidence on the part of the plaintiff, the court gave an instruction in the nature of a demurrer to the evidence, whereupon the plaintiff took anon-suit, with leave to move to set the same aside. This motion he filed in due time, and this being overruled, and exceptions taken, he appealed to this court.
[394]*394Sale of personal property without delivery: statute of frauds. [392]*392The case as presented by the present record, presents, briefly stated, the following state of facts: In October, 1885, the defendants took out an execution from the Hannibal court of common pleas, on a judgment they had against one James E. Bush, and levied upon a crop of corn in Ralls county, as the property of Bush, grown upon the farm of one Trabue. This levy was made October 15, 1895. Bush had leased the farm from Trabue, and had planted and cultivated the corn levied upon, and was in possession of the farm and corn at the date of the levy. Redman filed with the sheriff, who made the levy, a written demand for the corn, and notice that he claimed it as his property. Thereupon defendants.- gave the bond sued on (aii indemnifying bond, under the statute). Bush and Trabue were both dead at the time of the trial.’ Trabue’s evidence or the substance of it, however, was agreed to and read at the trial. Plaintiff, to .sustain his right of recovery, claimed to be the owner of the corn at the date of the levy, by virtue of a previous sale of it, made by Bush to him. The evidence tend[393]*393irtg to prove this sale was substantially this: That Redman held the notes of Bush for about $800; that in the latter part of August, or early in September, 1885, Redman, with his son, and Bush, met in a public road, had a conversation (apart) which the son did not hear, and when they were through with the conversation, they came to the son, and Redman remarked, in the presence and hearing of Bush, that he had bought Bush’s corn at forty cents per bushel, to be fed on the Trabue farm, and Bush remarked he had sold it in that way. Trabue’s testimony was that he; agreed with Bush and Redman to look to Redman for his rent, and agreed that Bush might feed the corn crop to_Redman’s cattle on the farm, and that he would release his landlord’s lien on the corn, and take a lien on the cattle of Redman for the rent. James T. Bush testified that he was the father of James E. Bush, and that his son told him, before the levy of the execution, that he had sold his crop of corn to Redman, at forty cents, and that he was to feed it out. John Dyer testified that Bush told him, in the presence of Redman, that he had sold his crop to Redman, at forty cents, and that he had to feed it out for Redman on the farm. The evidence also tended to prove that after the alleged sale, Bush made a pond for water on one part of the farm, and did some work toward cleaning out an old one. Redman paid no rent to Trabue. No memorandum in writing was made at this sale, no earnest money was paid, no credit was given on the notes which Redman held against Bush. There was one hundred and twenty acres of the corn crop, estimated at about four thousand, five hundred bushels. Bush was on the farm when the levy of the execution was made and in possession of the premises, .including the corn crop. On a close examination of the evidence we have failed to find a [394]*394single syllable of testimony as to any arrangement about a change of the possession 0f this corn from Bush to Redman, or as to time when such change, if any, should be made. No evidence that Bush was to hold the corn as the agent of Redman; no evidence that Redman was ever on the premises, or ever saw the corn. There is a total absence of testimony of delivery, actual or symbolical, or of any time within which, or method by which delivery should be made in the future. The sale (if any was made) was in the latter part of August, or parly in September. The levy was on the fifteenth day of October. Ample time between the sale and levy had elapsed in which possession could have been taken by Redman. The corn being the property of a tenant, was not part of the realty upon which it was grown. It was for all purposes personal property, and if we treat this trade, or supposed trade, between Bush and Redman, as a sale of personal property, then it is within section 5178, Revised Statutes, 1889, of the statute of frauds, and void as to the creditors of Bush. Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262; State ex rel. Pierce v. Merritt, 70 Mo. 275; Claftin v. Rosenberg, 42 Mo. 447.
Under the authority of Stewart v. Berguson, 79 Mo. 524; Burgert v. Borchert, 59 Mo. 80; Wright v. McCormick and Claftin v. Rosenberg, supra, the evidence being undisputed, it was the duty of the court to decree the sale fraudulent and void as to respondents. The case was tried upon the theory of a sale. We do not feel it our duty to discuss it upon another theory, raised by the discussion in respondents’ brief, as the result would not be different by accepting that theory of the case.
The judgment is affirmed.
All concur; Judge Biggs in the result and writes a separate opinion. Free access — add to your briefcase to read the full text and ask questions with AI