Shockey v. Johntz

The opinion of the court was delivered by (xllkeson, P. J. : The plaintiffs in error contend that, by reason of the terms of the lease, Kalebaugh having the right to renew the same on March 1, 1890, for a further period of two years, and having remained upon the land for some time after March 1, 1890, this gave him the right to the crop, and that his mortgagees succeeded to his rights by virtue of the mortgage. We cannot agree with plaintiffs in error. In Smith v. Hague, 25 Kan. 246 — a case where a crop of wheat was planted upon the land after a judgment had been rendered decreeing a foreclosure of the vendor’s lien against the land and ordering that it be sold to satisfy such lien, and under such order of sale the land was [486] sold before the crop was ripe or harvested — it was ruled that the crops which were then growing upon the land, and not reserved in the order of sale, or at the sale, passed by the sale and deed of conveyance of the sheriff. In Beckman v. Sikes, 35 Kan. 120, Mr. Justice Johnston, in delivering the opinion of the court, says : “The fact that the mortgagor or judgment debtor sold the growing crop prior to the sheriff’s sale of the land . . . does not vary the case, because he could not pass a title greater than his own, and therefore Sikes obtained no better right to the growing crop than Baker had or could give.” Of course the mortgage, as well as the judgment decreeing a foreclosure, was only a lien upon the land, and did not confer title. The title and right of possession remained in the mortgagor until the sale and conveyance of the land. Until that time he was entitled to the use of the land, and to all the crops grown thereon that had ripened and were severed. The lien of the mortgage and judgment, however, attached to the growing crops until they were severed, as well as to the land. The mortgagor planted the crops knowing that thej'- were subject to the mortgage and liable to be divested by the foreclosure and sale of the premises. Any one who purchased such crops from him took them subject to the same contingency, as the recorded mortgage and the decree of foreclosure were notice to him of the existence of the lien. If the land be not sold until the crops ripen and are severed, the vendee of the mortgagor would ordinarity get a good title; but if the land was sold and conveyed while the crops were still growing, and there was no reservation or waiver of the right to the crops [487] at such sale, the title to the same would pass with the land. But the plaintiffs in error contend that this case (Beckman v. Sikes, supra) does not apply. There the sale was made by the mortgagor; here it was made by the tenant of the mortgagor. We cannot understand how this could change the rule laid down in the case. If the mortgagor’s title was limited and restricted by the mortgage and judgment, his lessee had no greater title than he could give. . The record of the mortgage implied notice to him, and Shockey and Snider could obtain no greater right to the crops than Kalebaugh had, and in the case at bar they not only had the notice of the recorded mortgage and decree of foreclosure, but of the sale (which it is presumed was made, as required by law, upon published notice) that occurred some days before they obtained their mortgage. It is further contended by plaintiffs in error, that Kalebaugh was not made a party to the foreclosure suit; hence the rule is changed. We think not. The right of the purchaser was not and could not be defeated by reason of the lease, or by the fact that the possession was in or that the crops were grown by the lessee. The right to the possession and the right to the growing crops passed to the purchaser. If the tenant had been a party to the foreclosure suit, the possession and the crops could have been delivered to him by process under that judgment; but, since he was not made a party thereto, he cannot obtain that remedy except by some other action. The purchaser’s rights, however, are just the same as they would have been if the tenant had been made a party. It follows, therefore, that Malott, by his purchase and sheriff’s deed, became the absolute owner of the premises, in488 eluding the crops growing thereon. (Downard v. Goff, 40 Iowa, 579; Goodwin v. Smith, 49 Kan. 351.) The judgment in this case will be affirmed. All the Judges concurring.