51 Mo. App. 157 | Mo. Ct. App. | 1892
About March 1,1890, plaintiff rented a farm of defendant Johnson for one year, and went into possession. The following fall he sold to his said landlord, Johnson, the right to enter and sow. a portion of said farm in the wheat and rye, from which grew the grain in controversy. In the following year, plaintiff being still in possession, but as tenant of another party, Johnson entered, cut and shocked the grain, against plaintiff’s consent, as is alleged.
Before plaintiff rented of Johnson, he, Johnson, had given a Meed of trust on the premises, and a sale under this deed of trust took place shortly after Johnson ■sowed the grain under his arrangement with plaintiff.
The defense was twofold: First, that, since defendant sowed the wheat before condition broken in the deed of trust, he was not affected by the deed of trust, and, second, that the deed of trust was procured by fraud practiced upon the defendant. The latter defense seems to have been abandoned, as we judge by defendant’s brief, and, as no such issue was presented to the jury by instructions, we will assume it to be abandoned.
The first defense, and the instruction of the court sustaining it, we are of the opinion are not tenable. In Hayden v. Burkemper, 40 Mo. App. 346, the court of appeals at St. Louis, suggested that such defense would be good, but the point was not involved in that decision, since condition was broken in the deed of trust in that case before the crop was sown. The case was certified to the supreme court, and the decision there is as it was in the court of appeals, viz., that a sale under a mortgage or deed of trust carried title to growing crops which had been sown by the mortgagor. The law is broadly stated and no difference is noted between crops sown before or after condition broken. 101 Mo. 644. And so the same thing is broadly stated, and no distinction noted, in Salmon v. Fewell, 17 Mo. App. 118, and in Wallace v. Cherry, 32 Mo. App. 436, as well as [in Vogt v. Cunningham, 50 Mo. App. 136; Wood’s Landlord & Tenant, sec. 126.
It ought to be clear that a mortgagor’s tenant ought not to have any greater rights against the mortgagee than the mortgagor himself has. The mortga
If a lease of which the mortgagee would be chargeable with notice be made prior to the mortgage, the mortgagee could perhaps only rightly claim as against the lessee to substitute himself to the rights of the mortgagor, such as to receive the rents, etc. But when the lessee accepts his tenancy with notice of the prior
The modern doctrine as to a mortgage is that it is a mere security for a debt, and in Missouri this is true even after condition broken. Pease v. Pilot Knob, 49 Mo. 124. It is a charge upon the land out of which the debt secured may be made. The mortgagor in possession is enabled, by such possession and receipt of the rents and profits, to pay the interest and debt. If he breaks the condition the legal title passes to the mortgagee, and he may enter, and for that purpose may bring ejectment (Walcop v. McKinney, 10 Mo. 229; Johnson v. Houston, 47 Mo. 227; Wood v. Hilderbrand, 46 Mo. 284; Kennett v. Plummer, 28 Mo 142; Jones v. Mack, 53 Mo. 147; Masterson v. Railroad, 72 Mo. 342), thus taking to himself the rents and profits to apply on the debt and interest. But, when he forecloses and sells, the purchaser gets title to the growing crop as a part of the land, as much as he would to a tree standing thereon. In many of the states the rights of mortgagor and mortgagee are defined, limited or enlarged by statute. So that the statutory policy of each state should be considered in determining the force of a decision of any particular state.' In this state we have no statute declaring what estate the mortgagor and mortgagee may have in the mortgaged premises, and we find ourselves governed by the doctrine announced by the-courts uninfluenced, in this respect, by statute.
The form of the modem mortgage or deed of trust, in use with us, only conveys a title upon condition. If this condition is faithfully performed, there is no oper
Johnson was the mortgagor and lessor in this case who hired the ground upon which the grain was sown of his tenant, but we have treated him herein as though an original tenant of a mortgagor.
II. As the cause is to be remanded, it is well enough to add, that as plaintiff’s title to the grain is based on the deed of trust, such title may be defeated by showing such deed of trust was obtained in a manner rendering it a nullity. And this may be done under a general denial.
Judgment reversed and cause remanded.