93 P. 936 | Or. | 1908
Lead Opinion
delivered the opinion of the court.
*366 “It is further a well-settled principle in equity that one who has an interest in a security, may advance what is fairly necessary to its preservation, and may retain the advances out of the proceeds before crediting any portion of his debt. There can," at least, be no doubt of that where such advances are made by the consent of all parties interested in the property or fund. * * This is not upon the idea that the security of the mortgage is thereby extended to other advances, but rather upon the consideration that the proceeds of the property have been diminished by the expenses of preservation.”
That was a case of a chattel mortgage upon a growing cotton crop; a suit being brought by the mortgagor to compel an accounting of the crop and a cancellation of the mortgage, without payment of the advances to harvest it. Wheat v. Watson, 57 Ala. 581, was a case where the landlord had a lien by statute for the rental. The defendant Watson had a cropper’s lien for $500 advanced to the tenants to enable them to make the crop. In July the tenants abandoned the crop. The landlord offered to permit the defendant to take the place -of the tenants and to complete .the crop, which he declined to do. The landlord then took charge of the crop and harvested it; and the question was whether the landlord was entitled to be reimbursed from the crop for such expenses, in preference to the defendant’s lien for prior advances to the tenants.
It is held that if the defendant; when given the opportunity, fails' to cultivate and gather the crop, he relinquishes to the landlord the whole crop, and, if he has any remedy, it is only for the surplus after the landlord is fully paid for the expenses of making the crop. It is held in Caldwell v. Hall, 49 Ark. 508 (1 S. W. 62: 4 Am. Rep.) that it is a well-settled principle in equity that one who has a lien on a growing crop may advance what is fairly necessary to prevent waste or destruction of the security, and
Therefore the decree is reversed, and a decree rendered here that the proceeds of Go Sun’s share of the crop be applied, first, in the payment of the costs and disbursements of this suit; and, secondly, to the payment of the claim of the plaintiffs, $841.51; and, thirdly,
Rehearing
Decided October 6, 1908.
On Petition for Rehearing.
delivered the opinion of the court.
The case of Wheat v. Watson, 57 Ala. 581, cited in the opinion, is a parallel case to the one before us. There the landlord, Wheat, leased his lands to L. & H., who were to crop it and deliver to plaintiff one-fourth of the crop after it was harvested; and Watson, the defendant, made advances to the tenants to aid them in making the crop, for which the statute gave him a
We deem the landowner’s right in such a case as equally entitled to equitable protection as that of .a lienor. The reason for it is even greater, as ■ otherwise in such a case he would be compelled to make a crop to pay the tenant’s debts or abandon all claim of income' from his land. Go Sun could not get the men to harvest the crop, and so notified the plaintiffs; and plaintiffs, to secure their rental, were compelled to act. The case of Sunol v. Molloy, 63 Cal. 369, was cited in the opinion only to the point that the mortgagee of the tenant stands in no better position than the tenant in his relations to the landlord, and that he has no greater or other claim against the landlord than Go Sun had. And the landlord is not without remedy because his rental is
The petition is denied.
Reversed: Rehearing Denied.