majority">Hike, C. J.

A. C. Lake, as guardian of Ernest B. Lake and Louise Bradford, minor heirs of D. W. Lake, deceased, filed a complaint in the Marion Circuit Court against Thomas Combs, in which he sought to recover for his wards certain real estate held by 'Combs, and also a ferry boat and outfit.

The case was tried before the circuit judge sitting as a jury. He gave judgment for the defendant, and the plaintiffs have appealed; the minors in the meantime having reached majority.

The record is peculiarly constructed. There are depositions and oral testimony copied in the transcript, without any authentication, and following these depositions and testimony is the bill of exceptions, which contains in a concise form the evidence of witnesses. Only the testimony authenticated is considered.

The testimony on behalf of the plaintiffs (appellants here) is substantially as follows:

Wilber testified that he made a contract with A. C. Lake, guardian of these minors, which was introduced. By it he leased a tract of land for a ferry privilege on White River at Lake’s Ferry; and he was to put in a ferry boat at a cost of not less than $50, the boat to be large enough to carry a wagon and team hitched to it, and to expend not less than $50 on repairing the road leading to the ferry, and to run a ferry regularly for a period of two years from July x, 1903; and at the end of that time to return the land, together with the ferry outfit, to the Lake heirs; and other details not necessary to notice.

About the time he made this contract with Lake, or shortly before it, Keener,, Cowdrey and Jones built a ferry boat, and began. operating a ferry at this point. Their ferry boat was run by means of poles and oars, and landed at the public road on each side of the river. The land on the Baxter side of the river, opposite the Lake tract, belonged to Combs. When Wilber got this contract with Lake, he formed a partnership with Keener, Cowdrey and Jones; and Gray, Keener’s partner, was also taken into the company, making it consist of five. They then bought a wire cable with which to operate the ferry, and attached it to the Lake land 40 or 50 feet outside of the public road, and stretched it across the river, and fastened it at the other end to a tree in the public road. They did not touch on- Combs’s land on the Baxter side of the river. A windlass was placed on the Lake land, and by it the cable controlling the ferry was operated.

Wilber said that Keener, Cowdrey, Gray and Jones knew of said contract, and operated the ferry under it. "They, his partners, claimed that they could operate a ferry at that point without a lease from Lake or anyone else, there being a public road on each side of the river; but they did not claim that they could attach their wire cable to the Lake land without a contract, and they did attach their cable to- the Lake land and operated their ferry from it under and by virtue of his contract with the Lakes. That the partners were cognizant of the fact that under the contract the ferry outfit was to be the property of the Lakes at the termination of the contract as part of the consideration for the use of the land, and that they were willing to this, as they anticipated that by that time the railroad would be built across the river near there, rendering the ferry of little value. He and his co-owners performed the $50 worth of road work required by the Lake lease. He said he never sold his interest to -Cornell, or to anyone else; that Cornell simply operated the ferry for the co-partnership.

When the ferry license was first issued, it was in the name of Jones; but Combs, who owned a ferry a short distance up the river, brought'a suit in Baxter County to enjoin Jones from running the ferry; and in order to defeat this injunction the license was shifted from Jones to Cornell and run in his name, so that the ferry would not be stopped. Wilbur said that he did not know of this at the time it was done, and did not consent to it, and that he afterwards learned that Cornell did not -pay anything for the ferry, and that no sale was made to him. Cornell was a clerk in the employ of Gray and Keener.-

D. T. Jones, another member of the partnership, testified to substantially the same effect as Wilber, and stated that he . transferred the license to Cornell in order to defeat the suit of Combs against them, and that there was no sale to Cornell. He says that -Cornell did not buy the ferry, and never did own any part of it. He further says that Combs saw the lease from Lake to- Wilber prior to the time he claims to have bought, when it was used in the trial of the injunction suit.

Jones says that he and Cowdrey, Keener and Gray contended that they had a right to operate the ferry by means of poles and oars without a lease from the Lakes, but they did not consider that they had a right to attach the ferry to the Lake land without a contract from them permitting it. That the firm put the ferry in with the intention of operating it until the expiration of the lease of Wilber, and then the railroad would be built, and the ferry business would not amount to much, and that they were willing for the ferry outfit to go to the Lakes at the end of the lease, and knew that was the effect of using the Wilber lease of the Lake land.

A. C. Lake testified to the execution of the contract and the operation of the ferry under it. He said that Combs, after he got possession of the ferry outfit, moved the wire cable further back on the Lake land and fastened it to an iron bar driven in a permanent rock on said land. He testified as to the amount of damages he thought that his wards had suffered by reason of the action of Combs, and of his efforts to have Combs vacate the lands and ferry at the expiration of the lease.

The evidence on behalf of the defendant was as follows: Combs testified that he claims he bought the ferry from Cornell, the party whom he found in possession of it, and claims that he paid $250 in cash for it. That he thought the ferry belonged to Cornell, as Keener told him it belonged to Cornell and for him to buy it. He admits that he saw the lease which Lake gave to Wilber before he bought the ferry from Cornell. He says he let Keener have a lot in Cotter which went in payment for the ferry in controversy. He does not claim that he bought the ferry from Wilber or anyone except from Cornell, as the license was in the name of Cornell. That when he bought the ferry oufit he went to where Wilber, Cowdrey, Keener, Gray and Jones had attached the end of the wire cable to a tree on the Lake land, and moved it further back upon the bluff on the Lake land, and there fastened it to an iron bar in a rock. He also took the opposite end of the wire cable from the public road, and moved it on his own land on the Baxter side of the river, thus making the ferry run from the Lake land to his land, and so operated it from said points.

Keener testified for Combs that he and his partners did not consider the lease which Wilber made with the Lakes as necessary. That they thought they had a right to put in a public ferry there and fun it because of the public road which they used on either side of the river. That he declined at all times to recognize Wilber’s lease from the Lakes because he thought-it was unnecessary. But he admits that his firm fastened the wire cable to a tree on the Lake land, and operated it from there. He says that they sold the ferry to Cornell, and that “D, T. Jones made the sale to Cornell for our Company;” and Cornell afterwards sold it to Combs.- That he. told Combs that Cornell was the owner of the ferry.

Gray, another one of the partners, testified that he did not consider the Lake lease necessar}^ in order to operate the ferry. He likewise admits that the ferry was fastened to a tree on the Lake land. He says the license was taken out in the name of Cornell by the company, but did not know who paid for it.

This is the substance of all the testimony in the bill of exceptions. The court found from these facts that there was a bona fide sale from Cowdrey, Keener, Gray, Jones and Wilber to Cornell, and by Cornell to Combs, and gave judgment for the defendant, and the Lakes have appealed.

Giving the finding of facts by the judge the same effect given to the finding of a jury, yet this judgment can not be sustained in its entirety. If it be conceded that there was a bona ;fide sale by Cornell to Combs, and a majority of the court do not think that the evidence establishes a sale without notice, yet there was no authority, other than the Wilber lease, for Combs to take and hold possession of the Lake land and operate the ferry upon it. This lease only gave Wilber and those claiming under him the right to occupy the land upon the terms therein stated until July 1, 1905. He further knew that at the end of that time the-lessees were to surrender the ferry outfit to the Lakes as part payment for the use of the land during the period of the lease. Combs denies holding under the Lake lease, but it is the only shadow of right he had to possession of the land.

There was likely a misjoinder of actions in joining art action for the recovery of the real estate and of the ferry boat and appliances; -but there was no objection to such misjoinder, and under section 6082 of Kirby’s Digest such error was waived.

A majority of the court decides that there can be no recovery of the ferry boat or other ferry outfit because there was never a delivery of it, but only a contract to deliver it. They hold that the agreement in the lease for the delivery of. the ferry outfit at the expiration of .the term was executory, and the title did not pass until it became executed, which they hold did not occur, but that on the contrary the title passed to appellee Combs under his purchase before the time of delivery fixed by the contract.

Opinion delivered October 7, 1907.

Mr. Justice Battue and the writer do not agree with that view, as they think that when the partnership took possession of the land under the Wilber lease they attached the boat and other appliances to the land with the understanding that they were to remain there, and Combs stepped into their shoes by his purchase. In other words, that he could not' accept the benefits of the Lake lease without being subjected to the burden of it, and the delivery and title of the personal property passed when attached to the Lake land with intention of remaining there.

Therefore, under the views of the majority, the judgment, so far as the personal property is concerned, is affirmed; but, as indicated, no title whatsoever has passed to the land to Combs, and he is shown by his own testimony to be in possession of it, having the wire cable attached to the land, and operating the* ferry with a windlass from it. He has refused to give up this land, and demand has been made'upon him. The judgment is reversed, and the cause remanded, with instructions to proceed with the suit for the recovery of the land and the usable value thereof from the date Combs took possession of it.

Reversed and remanded.

Justices Wood and Riddick are of opinion that the judgment in whole case should be affirmed, and dissent from so much of the judgment as is reversed.

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