49 Kan. 351 | Kan. | 1892
Opinion by
This action was commenced to restrain Milton Smith, the defendant in error, from trespassing upon a quarter-section of land in Sumner county, and from cutting, carrying away or disposing of a wheat crop of 90 acres growing on said land. Smith had rented the land for a year from the .owner, in March, 1890. He had planted corn and oats in the spring, and, in accordance with the terms of his lease, had planted 90 acres in wheat in the fall of 1890. At the time he rented the land, a suit was pending to foreclose a mortgage on the land given by the grantor of the lessor. Judgment was rendered in this action on the 7th day of May, 1890. The land was sold at judicial sale on the 29th day of December, 1890, (after said wheat was up and growing,) and the sale was confirmed and the sheriff ordered to make a deed on the 2d day of January, 1891. The sheriff executed a deed to said land to the Alliance Trust Company on the 5th day of January, 1891. Smith was ejected from said land by the sheriff, under a writ of possession, on the 2d day of February, 1891. On the 20th day of June, 1891, the wheat being ripe and ready for harvest, Smith, with horses and reapers and help, entered upon said land with the intent of harvesting and saving said wheat crop, and of keeping two-thirds of said crop, and of delivering one-third of said wheat crop to the Alliance Trust Company, or its agents, and would have cut and shocked said wheat in four days’ time, if he had not been prevented by the temporary injunction issued in this action. By the terms of his lease, Smith was entitled to two-thirds of the wheat and the landlord to one-third. Subsequently, on the final trial of the case, the district court of Sumner county dissolved the pending injunction and rendered judgment in favor of Smith for costs. The Alliance Trust Company brings the case here and asks us to reverse the ruling below, because they claim that all the rights of Smith were divested by the sale and deed
“The lien of the mortgage and the judgment, however, attached to the growing crops until they were severed, as well as to the land. The mortgagor planted the crop knowing that it was 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 decree of foreclosure were notice to him of the existence of the lien. If the land is not sold until the crops ripen and are removed, the vendee of the mortgagor would ordinarily get a good title; but if the land was sold and conveyed while the crops are still growing, and there was no reservation or waiver of the right to the crop at such sale, the title to the same would pass with the land,” citing Smith v. Hague, 25 Kas. 246; Chapman v. Veach, 32 id. 167; Garanflo v. Cooley, 33 id. 137; Jones on Mortgages, §§ 676, 780, 1658; 1 Washb. Real Property (3d ed.), 124; Jones v. Thomas, 8 Blackf. 428; Downard v. Groff, 40 Iowa, 597; Shepard v. Philbrick, 2 Denio, 174; Lane v. King, 8 Wend. 584; Gillett v. Balcolm, 6 Barb. 370; Scriven v. Moote, 36 Mich. 64; Howell v. Schenck, 4 Zab. 89; Pitts v. Hendrix, 6 Ga. 452; Rankin v. Kinsey, 7 Bradw. 215; Sherman v. Willett, 42 N. Y. 146; 1 Schouler, Personal Property, 133.
While that case was between the purchaser from a mortgagor, who claimed a crop of growing and immature corn, and the purchaser of the land at a foreclosure sale, we think the same rule applies to a tenant who leases the land after a suit
“By the lease from Dorstal, the mortgagor, to Leroy, the latter acquired no greater rights in the premises than the mortgagor had. The tenant stands exactly in the situation of the mortgagor. As between the mortgagor and mortgagee, the latter, by the foreclosure and sale, became entitled to the possession of the premises and to all the crops then growing thereon. This 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 made 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 Groff, by his purchase and sheriff’s deed, became the absolute owner of the premises, including the crops growing thereon; and by his conveyance he invested the plaintiff herein with that ownership, and she might by proper action have enforced her rights as such owner against the tenant. Her failure to do so cannot give her any cause of action against the defendant, her grantor. There was, therefore, only a technical breach of warranty, entitling plaintiff to nominal damages.
“This is clearly the doctrine of all the cases, both ancient and modern, unless it may be the case of Cassilly v. Rhodes, 12 Ohio, 88, and that case seems to be based upon a construe*357 tion of the appraisement law of that state. And the whole matter .is well summed up in Jones v. Thomas, 8 Blackford, 428, as follows: CA mortgagor is not entitled to emblements as tenants at will are. (4 Kent’s Com. 456.) A mortgagee may evict the mortgagor without notice, and retain the emblements; and if a lease be granted subsequently to the mortgage without his concurrence, he may evict the lessee without notice and retain the emblements.’ (Coote on Mortg. 351; 2 Swift’s Dig. 156; 2 Cruise’s Dig. 108.) The reason of this was said by the older writers to be, that the lessee was evicted by a title paramount, and the lease of the mortgagor amounted to a disseisin of the mortgagee, which rendered the lessee upon entry a wrong-doer. But a sufficient and better reason appears to be, that every person who takes under a mortgagor takes subject to all the rights of the mortgagee, unimpaired and unaffected. (4 Kent’s Com. 157; 16 Johns. R. 292; 18 id. 487; 6 Cowen, 147.) When, therefore, a mortgagee obtains the absolute estate in fee of the mortgaged premises, by becoming the purchaser under a foreclosure and sale, he is entitled to the emblements, and may maintain trespass against the mortgagor or his lessee for taking and carrying away the crops growing at the time of the sale, (Lane v. King, 8 Wend. 584,) the title and interest of the mortgagor or his lessee being subject to, and liable to be divested by, a foreclosure and sale of the mortgaged premises. (Shepherd v. Philbrick, 2 Denio, 174.) See also the cases cited in a note to the last case, and also the numerous authorities cited and stated in Hill on Mortg. (3d ed.), vol. 1, ch. 9, note c.”
We are compelled by the force of this decision, as well as the language of this court in Beckman v. Sikes, to recommend that the judgment be reversed.
By the Court: It is so ordered.
