Kendrick v. Moseley

The opinion of the Court was delivered by Mr. Justice Hydrick. 'Eugene- Bates, being the owner of a tract of land, gave four mortgages on it. The last three, executed in 1908, 1910, and 1911, respectively, were owned by the defendant. Moseley. On January 22, 1912, Bates gave the plaintiff a mortgage on-the crops to be grown on the land that year. The crop mortgage and those on the land were all duly recorded. Bates planted no crops; but, in February, 1912, he left the State, and Moseley took possession of the land, with his consent. Moseley cultivated the land, and raised and gathered certain crops on it. In the meantime, he commenced an action to foreclose his mortgages, and in November, 1912, the land was sold under the decree of foreclosure, and Moseley became the purchaser. The proceeds of the crops and the proceeds of the sale of the land, after payment of the costs of the action and the first mortgage thereon, were insufficient to- pay the amount due on Moseley’s mortgages. Plaintiff brought this action to- require Moseley to account to him for the value of the crops raised on the land, and to have the- same applied to the payment of his mortgage debt. The sole question is whether Moseley is so liable to- the plaintiff. He who takes a mortgage on property not then in existence takes it subject to the contingency that the property described in the mortgage will be brought into' existence, or *399 acquired by the mortgagor, or by* some one under the mortgagor, under such circumstances that the mortgagor will be the legal or equitable owner of it, or some part or interest in it. For certainly no one can mortgage property which he does not own, actually or potentially, and to' which he never acquires any title, legal or equitable. The case is analogous to that of the assigning of wages to be earned in future. If the assignor fails to earn any wages, the assignee takes nothing. Such a mortgage or assignment covers a mere possibility, and he who takes it as security does so in reliance upon the honesty and ability of his debtor to bring into existence the thing mortgaged or assigned. So, in this case, Kendrick took his mortgage subject to the contingency that Bates would raise the crops, or that some one would do so for him, or under him, under circumstances in which Bates would have title, legal or equitable, to them. Suppose neither Bates nor Moseley had raised any crops on the land, there would have been nothing to- which the lien of Kendrick’s mortgage could ■ have attached. Bates raised none, nor did he have any title, legal or equitable, tO’ the crops themselves which were raised by Moseley. Therefore there was nothing to which the lien of Kendrick’s mortgage could have attached. It cannot be contended that Bates was the owner of the crops raised by Moseley, or that he. had any title, legal or equitable, to them, or to any part of them, which would have enabled him to recover them, or the value of them, from Moseley. Certainly he could not have given Kendrick any higher rights than he himself would have had. His right against Moseley was that of a mortgagor against his mortgagee in possession of the mortgaged premises, and that right is to require the mortgagee to account for rents received, or1 a reasonable rental value, where he uses and occupies the premises himself. But the mortgagor has no title, legal or equitable, to the crops raised by his mortgagee in possession, or by those under him. Indeed, it would be *400 unjust to the mortgagor to make his compensation for the use and occupancy of his land depend upon whether the farming operations of his mortgagee in possession were successful of unsuccessful. Therefore the measure of such a mortgagee’s liability is made more certain, by requiring him to account to -the mortgagor for reasonable rents or a reasonable rental value. Givens v. Carroll, 40 S. C. 413, 18 S. E. 1030, 42 Am. St. Rep. 889; 2 Jones on Mort., sec. 1122. And that is the measure of Moseley’s liability to- Bates. But Kendrick’s mortgage does not cover the rents or the rental value of the land. Aside from this, Moseley, having been put into possession under prior recorded mortgages of the land, had the rig-ht to apply the rents, or the rental value thereof, to- the satisfaction of his mortgages, in the absence of any assignment thereof by the mortgagor prior to his- possession. This right is not affected by the fact that his mortgages do not cover the crops to- be raised on the land; or the rents of the land. It grows out of the fact that he was a mortgagee in possession. Section 4106, vol. I, Code of Laws, 1912, has no- bearing on the question at issue, for it is not necessary to- decide whether Kendrick’s mortgage would, after condition- broken, have vested in him a legal or an equitable title to any crops which might have belonged to Bates, since, under the facts ' stated, it vested no- sort of title in him to- the cro-ps raised by Moseley. Eor these reasons, the judgment is reyersed and the complaint dismissed. Mr. Justice Eraser concurs in the op-inio-n of Mr. Justice Hydrick. Mr. ChiEE Justice Gary concurs in the result.