177 P. 406 | Mont. | 1918
delivered the opinion of the court.
Claiming ownership and right to possession in itself of crops of wheat and oats severed from certain lands owned by it but not in its possession, plaintiff commenced this action seeking a perpetual injunction restraining defendants from interfering with plaintiff’s control and use of the crops and from selling them, and praying also for an injunction pendente lite. The complaint states the facts to be in substance these: On and prior to June 3, 1914, one Samuell was the owner and in possession of certain lands, and on that day his interest was sold to plaintiff under writ of execution issued upon a money judgment against him. No redemption from the sale having been made within the year expiring on June 3, 1915, the sheriff on June 7 following made his deed to plaintiff granting to it the land so sold with the appurtenances. At these times crops of wheat and oats were growing upon the land and the title to these crops passed to plaintiff by virtue of the law and the sheriff’s deed. Ever since June 3, 1915, plaintiff has been and is now entitled to possession of the land and.crops, but defendant company, knowing at all times of the rights of plaintiff, in December, 1914, took from Samuell a chattel mortgage of the crops then growing and to be grown on the land, which it is proceeding to foreclose, and to that end has delivered a copy of
In response to an order to show cause why an interlocutory injunction should not be granted upon the complaint, defendant demurred for want of substance, and further objected because plaintiff had an adequate remedy at law. The court below' refused to order an injunction pendente lite, and plaintiff appeals.
Upon the facts thus stated, we do not find it necessary to decide the question whether or not under the statutes of Montana, notably sections 6836, 6842, 6843, 6877 and 6879 of the Revised
When stripped of averments not pertinent to the question of ownership of the crops, the complaint shows that Samuell owned and was in. possession of land which was sold to plaintiff at execution sale on June 3, 1914, and that Samuel has always remained in actual possession; that the property has never been redeemed from the sale; that the year for redemption expired on June 3 and the sheriff’s deed was made on June 7, 1915; that during the period of redemption Samuell had sowed the land in wheat and oats, and these were growing on the land when the redemption period expired and the sheriff’s deed was executed ; that he cultivated the crops and, when they were fit for harvest, severed them from the soil and has never parted with possession of them.
Wheat and oats are emblements, — fructus industriales, — for
So likewise, when by virtue of a decretal or execution sale, title to land becomes vested in the purchaser with right to present possession, title to annual crops sown by the former owner and then growing on the land passes, sub modo, to the purchaser and continues in him unless and until such ownership is lost, and one of the ways by which his sub modo ownership may be brought to an end is the occupation of the land by a tenant at sufferance who planted and cultivated the crops; and harvested them when ripe, and thus appropriates to himself, as owner, that which has now become detached from the soil and ceased
As to a tenant at will, a situation somewhat different is [7] presented, for he is a tenant rightfully in possession with the
To the facts of the instant ease we apply these long-established principles of law, — principles from which there is
In our opinion, Samuell was a tenant by sufferance. But if he was, according to the common law, a tenant at will, or if section 4481 — designating estates at will as comprising one of four classes of estates in real property “in respect of the duration of their enjoyment” — has the effect of destroying estates by sufferance as known at common law, and making them estates at will (which we think unlikely), the result so far as the question of ownership is concerned must be the same. In that event, Samuell, as tenant at will, would be entitled, as has been shown, to rights greater than those possessed by a tenant by sufferance; for he would own the annual products of the soil, whether severed or not, and might have cultivated and harvested the crops growing at the end of his tenancy.
Plaintiff is not, however, without remedy. If Samuell was a
Since the complaint fails to show that plaintiff has any right or title to the crops, consideration of the objection to the complaint on the ground that it does not state facts sufficient to invoke injunctional relief were plaintiff the owner, need not be determined, and that question also is reserved.
The order refusing to grant an injunction pendente lite is affirmed.
Affirmed.