59 P. 811 | Or. | 1900
Lead Opinion
delivered the opinion of the court.
The facts out of which this controversy arose are that in June, 1896, a decree was rendered in the Circuit Court for' Klamath County foreclosing a real estate mortgage given by one John L. Hall to the plaintiff in November, 1894, under which the mortgaged premises were sold, and purchased by her on the first day of the following August, and she immediately entered into possession thereof. At the time of her purchase a crop of wheat was growing on the land, one-third of which belonged to Hall and the remainder to his tenant. The day before the sale, Hall gaye a chattel mortgage on his interest in the crop to the Little Klamath Water Ditch Co. to secure a debt, and, after the grain had been harvested, the defendant, as president and superintendent of the company, entered on the premises, and by virtue of such mortgage took and carried away the wheat described in the complaint. The plaintiff thereupon commenced this action for its recovery, claiming to be the owner thereof by virtue of her purchase at the foreclosure sale; and, failing therein, she appeals.
The only question for our determination is whether the ditch company, under its chattel mortgage, or the plaintiff as purchaser, is entitled to Hall’s interest in the grain growing on the land at the time of the sale under the foreclosure decree. Until foreclosure and sale, a mortgagor of real estate is entitled to the possession, rents, issues, and profits thereof. He has an absolute right to all an
Rehearing
Decided 15 August, 1900.
On Petition for Rehearing.
For petitioner there was a brief over the name of Mr. Chas. A. Cogswell.
delivered the opinion of the court.
The statute, in prescribing the person who is entitled to the possession of real property upon a judicial sale thereof, provides that the purchaser, from the day of sale until a resale or redemption, and a redemptioner from the day of his redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such case shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof during the same period : Hill’s Ann. Laws, § 307. Tt is stipulated that the grain so mortgaged by Hall was rental due from Hammond under the lease. “The word ‘due,’” says Mr. Justice Ewing, in Scudder v. Scudder, 10 N. J. Law, 340, “has more than one signification, or is used on different occasions to express distinct ideas. At times it signifies a simple indebtedness, without reference to the time of payment. Debitum in preesenti, sohendum in futuro.’ At other times it shows that the day of payment or render has passed.” In United States v. State Bank of North Carolina, 31 U. S. (6 Pet.) 29, Mr. Justice Story, in defining the word “due,” says : “It is sometimes used to express the mere state of indebtedness, and then is an equivalent to ‘owed’ or ‘owing ;’ and it is sometimes used to express the fact that the debt has become payable.” In Carr v. Thompson, 67 Mo. 472, it was held that the word “due” was improperly used for “owing.” As illustrating this definition, see, also, Leggett v. Bank, 25 Barb. 326 ; Allen v. Patterson, 7 N. Y. 476 (57 Am. Dec. 542). If it be assumed that the words “rental due,” as used in the stipulation, are synonymous with “rent accrued,” Hall could have entered and taken the quantity of wheat to which he was entitled, before it was harvested ; but,
Rehearing Denied.