40 Mo. App. 346 | Mo. Ct. App. | 1890
Lead Opinion
delivered the opinion of the court.
This record raises the mooted question whether, under the 'decisions in this state, as between the mortgagor and mortgagee, in case of a forced sale, the former or the latter is entitled to the annual crop of cereals growing on "the premises sold, and unsevered from the land on the day of sale, but subsequently severed by the mortgagor, and harvested while he is still in possession of the premises.
The action is one of replevin for eighteen hundred shocks of wheat, of the alleged value of eight hundred dollars. The answer, besides a general denial, raises some affirmative defenses, which we deem it unnecessary to notice, as no evidence was offered in their support, and hence the decision of the case depends almost exclusively on the correct answer to be given to the inquiry above propounded.
The case was tried by the court without a jury, and the following facts were shown by the-plaintiff’s evidence, which was all the evidence in the case: The plaintiff, in September’, 1882, sold the farm, on which this wheat was subsequently grown, to one Cambrón for twelve thousand dollars, and took from him a deed of trust on the land conveyed, securing the deferred payments of the purchase money. These deferred payments consisted of two principal notes, one for two thousand dollars, and one for fifty-five hundred dollars, and five interest notes of three hundred and ninety-five dollars each. Cambrón subsequently sold the land to the defendant, who assumed the payment of this incumbrance. In June, 1887, a- Mrs. Stahlschmidt was the holder of the principal note for two thousand dollars, and one Dyer the holder of the principal note for fifty-five hundred dollars, as collateral for moneys advanced
“Q. He cut it himself \ A. Yes, sir.”
The plaintiff further, testified that the wheat, on the day of sale, was nearly ready to cut, and his purpose for advertising the sale at that time was to get a claim upon the wheat before it was harvested, and to keep the defendant from getting away with the wheat.
Upon the facts thus shown, the court rendered judgment for the plaintiff for possession, and nominal damages ; and, as the facts are uncontroverted, the only question for decision is whether,, under the facts shown, the plaintiff or the defendant was entitled to the possession of the wheat.
The general rule recognized in this country is that a tenant, whose term is for an uncertain period, shall reap a crop which he sows, even though his term expires before the crop matures. This rule, however, has never prevailed as between mortgagor and mortgagee. Whatever crops are, at the date of the foreclosure, growing- upon the ' mortgaged premises, if planted after the mortgage is made, become the mortgagee’s, whether planted by the mortgagor or his tenant, free from any claim upon them by such tenant; but a foreclosure, after the crops are severed, does not carry an interest in them to the mortgagee or purchaser. 1 Washburn Real Prop. [5 Ed.] 144 ; 2 Jones on Mort., sec. 1658. Professor Washburn admits that the rule is limited to cases where the mortgage creates an estate in the land, and not a mere lien, since it seems to be settled that a tenant, who hires land subject to a judgment lien, and plants crops upon them prior to the sale ofi the premises, may claim them against a purchaser at the sheriff ’ s sale upon execution under the judgment. And Mr. Jones, in the section above quoted, says that, in states where a mortgage creates no estate in the mortgagee, but confers on him only a lien, the
Now in this state the rule has always been that a mortgage or deed of trust is a mere security for the debt, and that the legal title remains in the. mortgagor until condition broken. Kennett v. Plummer, 28 Mo. 145. But, after condition broken, the legal title passes to the mortgagee, subject to defeasance by payment of the debt before foreclosure (Pease v. Pilot Knob Iron Co., 49 Mo. 124), and there is no difference in that respect between a mortgage and a deed of trust. Johnson v. Houston, 47 Mo. 227. Thus it was held that a mortgagee, after condition broken, may maintain ejectment for the mortgaged land. Reddick v. Gressman, 49 Mo. 389, and the cases of Johnson v. Houston, 47 Mo. 227, and Siemers v. Schrader, 88 Mo. 23, recognize that a trustee in a deed of trust may do the same after default in payment of the debt secured, and before foreclosure by sale.
In the case at bar the deed of trust among other notes secures two interest notes, due respectively September 11, 1885, and 1886, and one principal note for two thousand dollars, due September 11, 1885. These notes, though due, were unpaid when the wheat in controversy was sown, and remained unpaid until after
There is nothing in the decisions in this state which is opposed to this view, although it is often difficult to discover the exact principle on which some of them rest. In Steele v. Farber, 37 Mo. 80, the contest was in regard to priority of right between an attaching creditor of the mortgagor, and the mortgagee in possession, but, as it stood admitted that the mortgagee had entered prior to the harvest, and that the mortgagor, in harvesting the crop, had acted as his agent and by his request, the points decided furnish no authority in this case one way or another. Jenkins v. McCoy, 50 Mo. 348, merely decides that the value of a crop raised by a trespasser upon land is not the measure of damages in an action of trespass by the owner against the trespasser, while Morgner v. Biggs, 46 Mo. 66, illustrates the proposition hereinabove stated, that a lessee or licensee for an uncertain period is entitled to harvest the crops he sows, although his right of occupancy expired before they mature. Adams v. Leip, 71 Mo. 598, seems to extend the same right to an adverse occupier, although, since that was also an action of replevin, the case is determined by the proposition decided in Jenkins v. McCoy, supra. Neither of these cases were contests between the mortgagor and the mortgagee, of the mortgagor and a purchaser at the foreclosure sale.
Endeavoring to deduce a principal from the universally recognized rule, and the many decisions in this state, we come to this conclusion: Where lands are subject to a mere lien at the time the crop is sown, the person in possession who sows the crop is entitled to
This ruling seems to reconcile decided cases, and is opposed to no decisions. It is in harmony with the decisions in all other states where the common law is known and is administered, and we cannot assume that the supreme court of this state ever intended to lay down a rule on this subject different from that in any other state. The rule is just and equitable, because it advises the mortgagor that he sows crops after condition broken, and at a time when the legal estate has passed from him, subject to the mortgagor’s right of re-entry at any time.
Upon the conceded facts of the case these views lead to an affirmance of the judgment, and with the concurrence of Judge Biggs it is affirmed. Judge Thompson dissents, being of opinion that the decision rendered is opposed to Jenkins v. McCoy and Adams v. Leip, supra. It is, therefore, ordered that the case be certified to the supreme court for final determination, and that, until final determination by that court, all further proceedings on this judgment be stayed.
Dissenting Opinion
(dissenting). — I do not concur in this opinion. I cannot reconcile it with the doctrine of the following cases: Adams v. Leip, 71 Mo. 597, Jenkins v. McCoy, 50 Mo. 349; Harris v. Turner, 46 Mo. 438;
I think that this case is opposed to the decisions of the supreme court in the four cases first above cited, and that it hence ought to be certified to that court in conformity with the constitutional mandate.