Moccasin State Bank v. Waldron

*583 MR. CHIEF JUSTICE CALLAWAY delivered the opinion of the court. 1. It is conceded that the controversy here is not over the crops but over the right of the plaintiff to recover a money *584 judgment for the use and occupation of the lands described in plaintiff’s complaint. No question has been raised as to the bona fides of the chattel mortgage executed by the Browns to Waldron. “A mortgage may be given upon a growing crop or a crop to be grown, and the lien thereof continues after severance, whether remaining in its original state or threshed or otherwise prepared for market,” but the lien attaches only to crops next maturing after the execution of the mortgage, by the express provisions of section 8290, Revised Codes 1921. But counsel for plaintiff argues that defendant has failed to show that the chattel mortgage was a valid lien on the wheat harvested upon the premises. The bankruptcy of the mortgagors, he says, canceled the lien of the chattel mortgage on any crops planted within four months prior to the date the mortgagors were declared bankrupts. He seeks to fortify this argument by citing Isbell v. Slette, 52 Mont. 156, 155 Pac. 503, wherein it is said that the lien of a mortgage upon crops thereafter to be planted “cannot attach until the crops come into existence — until they are planted.” Counsel overlooks the fact that he pleaded that the wheat crop consisted of 70 acres of winter, and 20 acres of spring wheat. But even if all the wheat crop had been planted in the spring it does not follow that the lien of the mortgage was not valid when it did attach, and it attached when the seed was planted. The crop was planted before the adjudication and within the express contemplation of the mortgage. The mortgage, valid in all respects, was executed and placed of record more than four months prior to the adjudication. In this situation the lien related to the date of the mortgage and was valid as to the trustee in bankruptcy. (Thompson v. Fairbanks, 75 Vt. 361, 104 Am. St. Rep. 899, 56 Atl. 11; affirmed 196 U. S. 516, 49 L. Ed. 577, 25 Sup. Ct. Rep. 306.) The regularity of the sheriff’s sale is not questioned and, the mortgage being valid, it is not denied that defendant became the owner of the crops by purchase at the sheriff’s *585 sale. The trustee did not assert the right (if he had such) to care for, harvest and sell the crops subject to the lien of the mortgage. He did not take any action with respect to them; he seems to have been content with the foreclosure and sale. This being so, counsel for defendant insist that defendant was entitled to take and keep possession of the lands, in so far as necessary, in order that the crops might be cared for and eventually harvested; consequently it is urged that the plaintiff has no cause of action. This argument cannot be maintained. The chattel mortgage did not operate as an encumbrance upon the land; it was an encumbrance upon the personal property and the crops therein mentioned only. (Isbell v. Slette, supra.) The mortgage did not by its terms purport to convey to the mortgagee any interest in the lands upon which the crops were growing or were to be grown. It went no further than to accord to the mortgagee the right to take possession of the crops when gathered or harvested. The court’s finding that the plaintiff is entitled to all the rents and profits from the premises for the year 1924 is erroneous, as is also its finding or conclusion that plaintiff is entitled to the value of the use and occupation thereof before its purchase of the lands was confirmed. There is no evidence in the record warranting any such finding or conclusion. The trustee in bankruptcy was entitled to the possession of the lands as of the date the Browns were adjudicated bankrupts, which was May 7, 1924. (Black on Bankruptcy, 3d ed., sec. 317; 7 C. J. 136.) From that date until the sale of the land to plaintiff was confirmed the trustee was entitled to the value of the use and occupation of the premises. Upon confirmation of the sale the right of possession to the land passed to the purchaser, the plaintiff. The sale was not consummated and title did not pass to the purchaser until confirmation. (Remington on Bankruptcy, 3d ed., sec. 2552.) By its purchase the plaintiff obtained whatever title the bankrupts had in the land at the time of the sale (Black *586 on Bankruptcy, 3d ed., sec. 480), and nothing more. (Carney v. Averill, 110 Me. 172, 85 Atl. 494; 7 C. J. 242.) The trustee did not transfer nor purport to transfer to the plaintiff any right of action which he had against the defendant because of her wrongful use and occupation of the land. True, as counsel for plaintiff says, “the transfer of a thing transfers also all its incidents, unless expressly excepted” (sec. 6857, Rev. Codes 1921), but the value of the use and occupation of the land from the date of the adjudication to the date of confirmation of the sale was not an incident to the land. The term “incident” is used both substantively and adjectively of a thing which usually, naturally and inseparably depends upon, pertains to or follows another that is more worthy. (Commonwealth v. Wampler, 104 Va. 337, 113 Am. St. Rep. 1029, 7 Ann. Cas. 422, 1 L. R. A. (n. s.) 149, 51 S. E. 737; Bouvier’s Law Dictionary.) “A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in case of a way, or watercourse, or a passage for light, air or heat over or across the land of another.” (Sec. 6671, Rev. Codes 1921.) As the bankrupts did not have any right to possess the land after the adjudication, and the trustee did not sell any right of action, plaintiff’s right of action cannot antedate the day upon which the sale was confirmed. 3. In the absence of defendant’s pleading plaintiff was en- titled to recover for the value of the use and occupation of the premises from the date of confirmation of the sale to the date of filing the complaint. Defendant, however, admitted remaining in possession of a portion of the premises even up to the date of filing her answer. She should, therefore, be held liable because of that possession during that period of time. As is stated in Leyson v. Davenport, 38 Mont. 62, 98 Pac. 641, plaintiff is entitled to damages in an amount equal to the reasonable value of the rents and profits for the use and occupation of the premises during the time defend *587 ant occupied the same. (And see Power Mercantile Co. v. Moore Mercantile Co., 55 Mont. 401, 177 Pac. 406.) Rehearing denied March 22, 1928. The judgment is reversed and the cause is remanded to the district court of Judith Basin county for a new trial. Reversed and remanded. Associate Justices Myers, Stark, Matthews and Galen or ncur.