Salmon v. Fewell

Opinion by Hall, J. I The rule “that until the mortgagee enters for breach of condition the mortgageor owns the estate'and he has a right to lease and collect rent as owner so long as he is alowedto remain in ’ possession ”. (White v. Wear, 4 Mo. App. Rep. 341), relied upon: by defendant is nota new rule,, and must be considered in connection with this further statement of it'in Kennett v. Plummer (28 Mo. 146): “ of course he (tile mortgageor) cannot impair the rights-of the mortgagee, and every person'taking-under him-will hold subject to the mortgage and to all the rights of the mortgagee.” So in this case'until-foreclosure the-, mortgageor had the right to lease the land,- but only to lease it subject to the mortgage. To further support thé first-proposition the ■ defendant has cited the following cases: Adams v. Leip (71 Mo. 597); Jenkins v. McCoy (50 Mo. 349); Harris v. Turner et al. (46 Mo. 438); Morgan v. Briggs (46 Mo. 66); Garth v. Caldwell (72 Mo. 622)these cases-are not in point. In Adams v. Leip, the suit was for the .recovery of:the possession of 1205 shocks of wheat, ’ which plaintiff, claimed by virtue of his ownership Of'the,land on -which it was grown. The' crop had been harvested and- severed from the soil. In Jenkins v. McCoy, the-plaintiff had purchased a farm of one Fisher, and upon it at the. time of the sale'-was a growing- crop‘planted by defendant,-.who afterwards removed it, and'the 'suibwas to- recover" the value of the corn upon the assumption that McOoy was a trespasser and had no right in the crop so raised. [123] The court held" I know of. no principle that would give, him (plaintiff) a title to what had been raised and removed, so as to make defendant liable not for the use of the property, but for the value of the crop.” * * * "As the vendor himself did not. own the corn, neither did he sell it to the plaintiff. The trespasser should never have been suffered to raise and harvest a .crop, but having been permitted to do so, its value is not the measure of damages. ” In Morgan v. Briggs, the suit' was a replevin suit for the recovery of the possession of two hundred bushels of wheat. The finding for. the defendant was sustained on the ground that he had purchased the wheat from one Foster, who had had possession of the plaintiff’s premises on which the wheat was grown for some two years, covering the period of the growing of the wheat, as. the licensee of plaintiff, and that the wheat crop had been put in by Foster, as .such licensee, with the plaintiff’s implied assent and. approval, although the evidence failed to show the existence of a lease from the plaintiff to Foster. In this case also the crop had been harvested and severed from the soil. In Harris v. Turner, et al., the action was an action of forcible entry and detainer, and it is simply decided therein £ £ if the. plaintiff was in peaceable possession whether rightfully or wrongfully, the - defendants had no right to dispossess him.” * * *- “And if,, therefore, the plaintiff had entered upon the land and planted, a crop, and .was in peaceable possession, of the same, no superior right of defendants could justify them in ousting him by force.” In these cases, except the last one, which is in no way applicable to this case, it is. decided that from a trespasser who cultivates a piece, of land, who harvests a crop grown thereon, and severs the same from the soil,, the crop cannot be taken, in replevin by the owner of the land. It is not, however,;decided in said cases, .nor does it follow as a conclusion therefrom that the owner of, the land cannot maintain, replevin, against the trespasser for. the possession of a crop while growing in the soil. It will be observed too that in none of these cases did the [124] owner of the land notify the trespasser not to move the crop while growing in and unsevered from the soil. Nor ■did the owner of the land in any of these cases demand the crop growing on the land. In this case the plaintiff •did both. In Garth v. Caldwell (72 Mo. 622), by holding “that annual crops raised by yearly labor and cultivation or fructus industriales are to be regarded as personal chattels, independent of and distinct from the land, capable of being sold by oral contract, and this without regard to whether the crops are growing, or, having matured, have ceased to derive any nutriment from the soil,” the court did not touch or affect the principle that a growing crop passes to a purchaser of the land at a sale thereof under a mortgage. In Shepard v. Philbrick (2 Denio 474), the court held as follows: “A growing ■crop raised annually by labor and cultivation, is, as it respects an execution against the owner, a mere chattel, and subject as such to be taken and sold under it. A purchaser on such' sale acquires the rights and interests of the defendant in the execution to the crop, with the right of ingress, egress, and regress for the purpose of gathering and carrying it away. The title and interest of right (mortgageors) in the prop of wheat in question growing upon the mortgaged premises, was entirely subject to and liable to be divested by a foreclosure and sale under the mortgage to Greene. The crop, as well as the land, was a security for the mortgage debt, and on the sale of the land under the mortgage, passed to the purchaser, that being the paramount title to Philbrick’s title, acquired under the execution.” In this case it will be seen that the court first lays down the doctrine ■of the case of Garth v. Caldwell, above, in substantially the same terms used therein, and then concludes that a growing crop of wheat does pass to the purchaser of the land at a sale thereof under a mortgage, a conclusion against which the defendant contends. Against the doctrine of this case of Shepard v. Philbrick, above, there is no Missouri authority, but in favor [125] of it there is authority in Missouri, and much authority elsewhere. Of it, in the case of Steele, etc., v. Farber et al. (37 Mo. 80), the following statement is made and approved : “Even where an execution is levied on a growing crop, as a part of the realty subject to execution, in which case a sale gives the purchaser a right to enter and harvest against the judgment debtor, a prior mortgage of the land takes precedence of the execution, and carries both land and crop.” A purchaser of land at a sale thereof under a mortgage, becomes entitled to the possession of the land, and to all' the crops then growing thereon; and the lessee holding the land under a lease from the mortgageor, made subsequently to the mortgage, without the concurrence of the mortgagee, has no greater right to the growing crop than the mortgageor. — -Jones on Mortgages, sect. 780, and authorities cited. The mortgageor, until foreclosure or possession taken, by the mortgagee, is entitled to the growing crop, and when they are severed, has an absolute right to them. They are covered by the mortgage until severed but-belong to the mortgageor afterwards. — Jones on Mortgages, sect. 697, and cases cited. The lessee of the mortgagor stands in place of the mortgageor. He has all, but only all, the rights of the mortgageor. A purchaser of land at a foreclosure sale is entitled to the crops growing at the time of the sale. — Shepard v. Philbrick, 2 Denio 175; cited and approved in Steele, etc., v. Farber et al., 37 Mo. 80; Jones on Mortgages, sect. 697. And a purchaser of land at a foreclosure sale may maintain replevin against the mortgageor or his lessee for the crops growing on said land at the time of the sale. — • Jones on Mortgages, sect. 697. The fact that the mortgagee was himself the purchaser does not alter the rule. —Same authority. In this case, where there was a sale of the land under the foreclosure of the mortgage; where the plaintiff, the [126] mortgagee, purchased the land at that sale; where the defendant was the lessee of the mortgageor under a lease made subsequently to the mortgage; and where the crop growing on the land was not mature at the time of the 'sale, we are clearly of the opinion that the crop passed (with the land to the plaintiff. — Howell v. Skink, 4 Zab. (N. J.) 92; Downard v. Groff, 40 Iowa 597; Crews v. Pendleton, 1 Leigh 305; Ling v. King, 8 Wend. 585; Scriven v. Moote, 36 Mich. 66; Anderson et al. v. Strauss, 98 Ill. 490; Jones v. Thomas, 8 Blackf. 428; Aldrich v. Reynolds, 1 Barb. Ch. 615. II. Replevin will lie -for ungathered corn standing in (the held. — Garth v. Caldwell, 72 Mo. 627; Barmen v. Moote, 46 Mich. 66. Especially will a replevin lie in this case in which it was admitted- that the corn was mature at the time of the bringing of the action. Hecht. v. Dettman, 56 Iowa 679. The judgment of the circuit court is affirmed. Judge Ellison concurs; Judge Philips not sitting.