Riddle v. Dow

Robinson, J. The two cases are submitted together. The controlling facts are the same in both, and the district court was authorized to find the facts to be substantially as follows: In the year 1891, the plaintiffs recovered judgments against the defendant, S. E. Dow, which are still unpaid. The defendant Dow, rented to J. H. Griffin and J. R. Griffin, by verbal agreement, certain land for the year 1892, and was to receive from them as rent, one-third of the crops which should be raised on the leased premises, to be delivered in Dow City, about three miles distant from the land. The .tenants occupied' the' premises, and proceeded to raise crops thereon. On the second day of September, 1892, Dow made to the interveners, W. C. Dickey & Co., a promissory note for the sum of four hundred dollars, payable on the first day of the next November, and to secure its payment executed a chattel mortgage upon the property, described as follows: “My undivided one-third interest in all the crops of every kind and description-grown during the season of 1892,” on land which was fully described, and which was that leased fco the Griffins, as stated. At that time no division of the crops grown had been made. The small grain, consisting of wheat and oats, was in stack, and the corn was in the field, and all were in the possession of the tenants. After the mortgage was given,, but on the same day, the tenants were garnished under executions issued on the judgments, and their answers were taken. The answers admitted that the garnishees were under, obligations to deliver a share of the [9] crops raised by them, but showed that no division had been made. Subsequently nearly one hundred and twenty bushels of wheat, three hundred and twenty bushels of oats, and more than two thousand bushels of corn were delivered by the tenants to the sheriff under the garnishments. A stipulation was then made under which the grain so delivered was sold, and the proceeds of the sale were paid into the court, to be appropriated by the judgments which should be rendered in the cases. The district court adjudged that the lien of the mortgage was paramount to the rights acquired by the garnishment proceedings, and awarded the proceeds of the grain to the inteveners. 1 I. It may fairly be inferred from the record before us, that the lease made by Dow gave to the tenants the sole possession of the leased premises during the term of the lease, the exclusive right to possess and hold the crops which should be grown, until they should be divided, and the right to make the division. The division of the crops actually made by the tenants and the delivery of a share thereof to the sheriff, were voluntary on the part of the . tenants, in fulfillment of the requirements of their lease. No question as to notice of the rights of any party is involved in this case. The question we are required to determine, is whether the mortgage given by the landlord to the interveners, was effectual to create an interest in the crops grown upon the leased premises, superior to the rights acquired by the judgment creditors of the landlord by' virtue of the garnishments. It is earnestly contended that the landlord had no interest in the crops until they were divided and his share was delivered; that he could not mortgage a share of them until it was set apart to him; and that, as the tenants were garnished before that was done, the judgment creditors acquired rights which were paramount to those created by the [10] mortgage. It is undoubtedly true that the authorities generally hold that, where a tenant on shares has exclusive possession of the leased premises, the legal title to the entire crop grown thereon and the right to possess it are vested in him until the share which is to be delivered as rent is separated from the remainder of the crop, and some authorities hold that such ownership is exclusive. It will be found, however, that in most cases of that character the landlord, or person claiming through him, was endeavoring to assert a right of possession as against the tenant before a division of crops had been made, or that there had been a conveyance of the land before a maturity of the crops, and a claim made that the landlord’s share did not pass by the conveyance. But the rules which control in such cases are not applicable to this case. To ascertain the fair scope and intent of a decision, and the force which should be given it, attention must be paid to the very questions which required determination. The case of Rees v. Baker, 4 G. Grreene, 461, may properly be regarded as the leading-one in this state for the doctrine that the exclusive ownership of growing crops, of which a share is to be delivered as rent, is in the tenant, but no question of that kind was involved in that case. The landlord had leased to the tenant land on shares. The tenant plowed and cultivated it, and sowed fall wheat upon it. The wheat was frozen out during the winter, and, in the spring following, the landlord, without the permission of the tenant, took possession of the land, and sowed it with spring wheat. The court held that the landlord was a trespasser, and that the tenant could recoverthe value of his labor in preparing the ground for a crop. What was said^in regard to the ownership of a crop, had one been raised by the tenant, was not relevant to any issue in the case. The facts involved in Townsend v. Isenberger, 45 Iowa, 670, — the next case [11] decided by this court, which is alleged to support the doctrine in question, were -substantially as follows: The owner of land leased it to a tenant, who was to deliver for its use one-third of the grain he should raise upon it. Before the crops were planted, a creditor of the landlord levied a writ of attachment upon the land. A judgment in the action was afterwards obtained, and before the crops matured, the land was sold without redemption, and a sheriff’s deed therefor executed. After the attachment was effected, but before the crops were planted, and before the judgment was rendered, the landlord assigned the lease, and the controversy in the case was in regard to the ownership of the share of the crop which was set apart by the tenant as rent. What was said in regard to the ownership of the tenant was designed to show that the rent had not accrued, and was not payable until after the purchaser at the sheriff’s sale had acquired title to the land; hence that the case was controlled by the rules that rent reserved by lease, and not accrued, passes by a conveyance of the land, and that a purchaser under execution sale is entitled to the rent accruing or falling due after the execution of the sheriff's deed. It is clear that those rules have no application in this case. The cases of Rees v. Baker, and Townsend v. Isenberger, were referred to in Atkins v. Womeldorf, 58 Iowa, 150 (4 N. W. Rep. 905), where it was said that, although it be true that the right of property in a crop grown on shares was, as between the landlord and tenant, in the latter until it was divided, yet that it was “the property of the tenant in the sense that the landlord may not enter upon the premises and take possession of the crops without consent of the tenant.” The case of Howard County v. Kyte, 69 Iowa, 307 (28 N. W. Rep. 609), merely decided that a writ of attachment against the property of a landlord cannot be levied [12] on growing crops, of. which he is to have a share as rent, for the reason that the officer has no right to take possession of the- crop, and the proper method of reaching the right of ’ the landlord to the rent is- by garnishment. It was said that: “The rent reserved being a share of the crop, is the same as when the rent is reserved in money, so far as the rights of the landlord or his creditors to take possession are involved,.and the tenant is in no manner in default until he refuses to deliver the share of grain, in compliance with his contract.” But it was not said that the interest of the landlord, in the crops raised, was no more than it would have been had the rent been payable in money. In no case which has been called to our attention, has a share of the crop to be delivered as rent, been treated, iii all respects', as though it were money rent. That it should not be, is clear, on principle. When rent is to be paid in money, the obligation of the tenant is discharged by the payment of the specified amount of money, from whatever source obtained; and if a share of the crop to be grown, or its equivalent, is. to be paid as rent, the requirements of the lease will be satisfied by the delivery of the share itself, or by delivering an equivalent — as crops of a kind and quality equal to the share designated. But when the rent is to be paid by delivery of a share of the crop raised on the leased premises, and no option is given to deliver an equivalent, the obligation of the tenant can be satisfied only by a delivery of the specified share of the crops grown on the leased premises. Nor can he be compelled to pay anything but the stipulated share, unless he fails to deliver it according to the terms of his contract. Johnson v. Shank, 67 Iowa, 116 (24 N. W. Rep. 749). In a proper case, a specific performance by the tenant of his contract to deliver a share of the crops as rent, would be compelled by a court of equity. [13] Whether it would be compelled in all cases, we do not decide. The rule in regard to ordinary contracts for the sale of personal property, is that specific performance will not be decreed where compensation in damages will afford complete and satisfactory relief. It was intimated, however, in Parker v. Garrison, 61 Ill. 250, that the delivery of a share of grain reserved as rent might be enforced as the execution of a trust. In that case the tenant had agreed to deliver as rent, one-half of the crops which he should raise on the leased premises, but it was to be paid in corn. He refused to deliver the stipulated share, and did not separate it from the remainder of the crop, but intended to sell all of it. He was enjoined from selling or otherwise disposing of the grain at the suit of the landlord. The court said that the landlord had an interest in the corn; that “it justly and equitably belongs to him”; that “the defendant, Garrison, had received from him the entire consideration of it, * *. * and it was his plain duty to deliver the corn to the complainant.” That case is an authority for the theory that the landlord has an interest in the crop which he is to have a share of as rent, before a division is made,which is more than a mere right to a landlord’s lien, and which the courts will protect. It should be remembered in this connection, that the rule that the leg‘al title to crops, a share of which is to be delivered as rent, and the right to their exclusive possession, are in the tenant until a separation and delivery of the rent share, is fully recognized by the supreme court of Illinois. Alwood v. Ruckman, 21 Ill. 200; Dixon v. Nicolls, 39 Ill. 384; Sargant v. Courrier, 66 Ill. 245. It is true it was said in Drake v. Railway Co., 70 Iowa, 63 (29 N. W. Rep. 804), that a landlord has not such an interest in the growing crops of his tenant as will enable him to maintain an action against a person who injures the crops. But the nature of the [14] landlord’s claim to the crops in that case is not shown. The point was decided without discussion by the court, apparently on the authority of Townsend v. Isenberger, supra. The case cannot, therefore, be regarded as in conflict with the views we now express. That a lease may be assigned as security, and the right to recover the rent reserved be thereby given to the assignee, was decided in Watson v. Hunkins, 13 Iowa, 548. This rule was followed in Lufkin v. Preston, 52 Iowa, 235 (3 N. W. Rep. 58), and 57 Iowa, 28 (10 N. W. Rep. 290). In the opinion filed on the first appeal in the case last cited, the cases of Rees v. Baker and Townsend v. Isenberger, supra, were referred to, but the court said: “It has never been held that a landlord may not assign his interest in the lease, and thus invest his assignee with the right to secure the rent when it is in a condition to be set apart.” The leases considered in that case provided that the landlord should have one-half of the crop in the field at harvest time. The leases were assigned- as collateral security, and afterwards, in March, and again in May, an execution was levied upon an undivided half of the corn growing upon the leased premises, as the property of the landlord. A sale thereof was made, and when the corn matured, one-half of it was gathered by the purchaser, by permission of the tenants. It was held that the assignments, if not fraudulent, invested the assignee with the right to one-half of the corn at harvest time. In Haywood v. O’Brien, 52 Iowa, 537 (3 N. W. Rep. 545), it was held that the assignment of a lease gives to the assignee the right to a landlord’s attachment. The case of Stickney v. Stickney, 77 Iowa, 699 (42 N. W. Rep. 518), was for the foreclosure of chattel mortgages upon live stock, grain and hay, on certain farms. One of them was occupied bj^ a tenant who had agreed to pay one-half of the products, including all crops [15] and fruits grown upon the farm, and hogs, cattle and calves raised on it. It did not appear that there had been any division of the property, but the court said of that in which the tenant claimed an interest, “Oí course, one-half was the landlord’s and one-half the tenant’s.” That a landlord has an interest in crops of which he is to have a share as rent, before separation and delivery of the share, which he may mortgage or sell, has been affirmed in other states. This was expressly held in Howell v. Pugh, 27 Kan. 702. The particulars of the tenancy do not fully appear in that report, but the statements of the case made on an earlier appeal, which is reported in 25 Kan. 97, with those made on the second appeal, show that the tenant was to pay as rent, one-half of the wheat, and one-third of - the corn and flax raised on the leased premises during the term, the wheat and flax to be delivered in the half-bushel, and the corn in the crib. On the eighth Gay of July, 1879. the landlord sold his share of the crops, and three days later suits were commenced against him, and the tenant was garnished. At that time the flax and corn were growing in the field, and the wheat was in stack, but no division had been made, and the question to be determined was whether the sale by the landlord was valid and effectual as against the garnishment. The only material difference between that case and this is, that in the Kansas case, the sale was absolute, while in this it was conditional. In Potts v. Newell, 22 Minn. 561, it was said that the right of the landlord to a share of the crop which was to be paid him as rent, was as clearly assignable as the fight to receive a specified rent in money; and a mortgage of such share, made before its separation from the remainder of the crop, was sustained. [15] The interest of the landlord in the share of crops to be delivered by the tenant, where the latter has the [16] legal title and right of possession, until separation and delivery, is similar to that of the tenant, in the share he is to receive, when possession of the crop is retained by the landlord until division. In Yates v. Kinney [Neb.) (27 N. W. Rep. 132), it appeared that the tenant, Kinney, was to deliver to his landlord, as rent, One-third of the crops to be raised on the leased premises, but the crops were to be considered the property of the landlord until they were divided. The tenant executed mortgages upon two-thirds of the crops before they were divided, and while they were growing. The court said: “It is evident that Kinney had some interest in the crops. The fact, that the extent of that interest depended upon his compliance with the terms of his lease, would not deprive him of the right to sell or mortgage it.” The court also held that, where the tenant had the right to assign his lease or sell his share of the crop raised on the leased premises, it logically followed that the same rights or interests might be mortgaged. In Hammock v. Cheekmoore (Ark.) (3 S. W. Rep. 180), it was said, that a party who works land for a share of the crops raised thereon, under an agreement, by which the landlord owns the entire crops until division, “may sell or mortgage his contingent interest, just as he may assign his wages to be hereafter earned.” The doctrine of these cases was recognized in Meacham v. Herndon (Tenn.) (6 S. W. Rep. 741). It was said in Horsley v. Moss (Tex. Civ. App.) (23 S. W. Rep. 1115), that a land owner who furnished the land, teams, food for teams, and tools, for which he was to receive one-half the crops raised on the land, had more than the landlord’s lien on the crops; that he had a specific interest in the crops themselves. In Ferrall v. Kent, 4 Grill (Md.) 209, it was said of a lease which provided that the tenant should give to the landlord one-half of everything [17] made on the leased premises, and carry all the crops to market, and pay the landlord one-half the proceeds after they were sold, that it vested in the parties to it a joint interest in the crops. It is well-settled that, in this state, valid mortgages of personal property, not in existence until after the mortgage is given, are valid. It was said in Lawrence v. McKenzie, 88 Iowa, 440 (55 N. W. Rep. 505), that the “general rule is that, in the absence of statutory provisions to the contrary, any personal property which is capable of being sold, and which has an actual or prospective existence, may be mortgaged.” That rule is in force in this state. Manufacturing Co. v. Robinson, 83 Iowa, 568 (49 N. W. Rep. 1031). In the case last cited it was said that the power to sell an account for money due cannot be questioned; that an interest in such an account less than the unqualified ownership of it may be transferred, and -that a valid mortgage may be given on a claim for money not earned. When the mortgage in question was given, the small grain grown upon the leased premises was matured and in stack, and the corn must have been nearly, if not quite, fully grown. The description in the mortgage was sufficient, and when the division was made the mortgage attached to the landlord’s share, thus ascertained. Johnson v. Rider, 84 Iowa, 53 (50 N. W. Rep. 36); Lufkin v. Preston, 52 Iowa, 235 (3 N. W. Rep. 58). See, also, Melin v. Reynolds, 32 Minn. 52 (19 N. W. Rep. 81); Potts v. Newell, 22 Minn. 562; Zehner v. Aultman, 74 Ind. 24; Sims v. Mead, 29 Kan. 125. In Potts v. Newell, supra, it was held that a mortgage upon “all the right, title, and interest” of the landlord in a crop to be grown, of which he was to have a share as rent, attached the instant the share was set apart, and was superior to the levy of an execution made after the mortgage was executed, but before the share was separated. It is the law in this state that no [18] lien is obtained by the process of garnishment, but. only a right to proceed against the garnishee personally. Clark v. Raymond, 86 Iowa, 667 (53 N. W. Rep. 354). According to numerous decisions of this court, the mortgage in question must have attached to the landlord’s share at the moment it was ascertained and set apart, if it did not attach before; and, since the garnishment did not create a lien, the mortgage became a first lien upon the property in controversy. The case of Orcutt v. Moore, 134 Mass. 48, is relied upon as in conflict with the rule we have announced, but we do not think that it is. The lease involved in that case provided that the tenant, Bailey, should “carry on the farm at the halves,” and he was to leave at the end of the term “as much hay as he found there when he took the farm.” In commenting on the lease, the court said: “It is not stated whether this hay was to be hay raised on the farm, or other hay of equal quality; whether the crops were to be divided in kind, or whether Bailey could sell them, accounting for one-half of the proceeds; and the evidence bearing on that question is not stated.” The court said that on the case thus made it could not be said, as a matter of law, that the parties to the lease were tenants in common. When read in connection with the facts to which the court refers, its conclusion appears to be in harmony with the views we have expressed, for in this case it is not shown that the obligation of the tenant to deliver a share of the crops as rent could be discharged by paying an equivalent in crops grown elsewhere than on the leased premises, or in money. On the contrary, it appears that the lease was designed to give each party a share of the crops- actually grown on the leased premises. That the landlord may sell the rent for the land at any time is not to be questioned. If he can sell all,. he can sell a part, especially when it is readily [19] ascertainable; and if he can make an absolute sale,.it follows that he can make a conditional one. The mortgage in controversy was a conditional sale of the landlord’s share of the crops which had been grown and was to be delivered according to the terms of the lease. What right or interest the mortgage would have conveyed had a share of the crops grown not been delivered, need not be determined. The conclusions which reason and authority demand, are, that the landlord had a mortgagable interest in the crops in controversy, when the mortgage was given; that the interest was made definite and certain when his share was separated and determined; that the mortgage fully attached to that share when it was thus ascertained, if it had not been operative before; that, as the mortgage was given be,fore the garnishment was effected, the latter was subject to the rights conferred by the former. It follows that the judgments of the district court were right, and they are therefore- affirmed.