176 P. 805 | Or. | 1918
This case coming up on demurrer to the amended complaint the allegations therein, as far as this court is concerned, form the undisputed facts. The question presents itself in a two-fold aspect. First, are the plaintiffs the owners of the hay cut and severed from the realty, and, second, are the plaintiffs entitled to the equitable relief sought in this suit. As to the first point it is contended by the defendants that upon the redemption of realty from the sheriff’s sale, all crops raised upon the premises during the time the purchaser under such sheriff’s sale holds possession of the property, belong to the redemptioner in specie upon the exercise of his right of redemption. They base their contention upon the Oregon cases of Cartwright v. Savage, 5 Or. 397; Fields v. Crowley, 71 Or. 141 (142 Pac. 360), and Reichert v. Sooy-Smith, 85 Or. 251 (165 Pac. 1174, 1184).
In the Cartwright case the property was sold on sheriff’s sale on July 26th, and immediately thereafter the purchaser harvested a crop of wheat. Action was brought by the redemptioner to recover from such purchaser, after redemption, the value of the wheat so harvested. A demurrer was interposed in the case and sustained. The plaintiff stood on his complaint and appealed. The court held that the demurrer should not have been sustained and remanded the case
In Fields v. Crowley, 71 Or. 141 (142 Pac. 360), the sheriff’s sale was as to real property upon which buildings were located. The purchaser under the sheriff’s sale took possession of the same and retained them until the redemption. An action was brought for the reasonable rental value of the hotel building, saloon, outhouses and barn located on said property. A demurrer was interposed to the complaint and sustained by the court and judgment for costs entered against plaintiffs, and they appeal. The case was reversed citing the Cartwright case and sent back for further proceedings. The clear holding of the Fields v. Crowley case, 71 Or. 141 (142 Pac. 360), is stated on page 148 (142 Pac. 362):
“But, where the purchaser takes possession of the purchased premises, and occupies, uses, or rents them, and the execution debtor redeems, the latter is entitled to recover from him the value of the rents, issues and profits of the premises during the time he has occupied, used, or rented them in the interim between the date of the sale and the redemption.”
It will be noted, however, in the Fields case there is no attempt to recover in specie the product of the real property, but it is merely an action to recover the reasonable rental value of the land and its appurtenances, and for the purpose of fixing such reasonable rental
In the case of Reichert v. Sooy-Smith, 85 Or. 251 (165 Pac. 1174), an orchard was sold on sheriff’s sale and the purchaser entered into possession and pruned and trimmed the same. Upon a redemption being made he brought suit against the redemptioner for the moneys expended by him in the care of said orchard and for the reasonable value of his services thereon. The redemptioner brought a counterclaim for use and occupation of the premises. A demurrer was interposed to the complaint and also to the counterclaim. The demurrer to the complaint was overruled and a trial was had before a jury which rendered judgment for the plaintiff. Such judgment was reversed for the reason that the court held that no purchaser at a sheriff’s sale could, by making improvements on the property, charge the redemptioner with the legal duty to pay for the same upon redemption and, therefore, the demurrer should have been sustained. As to the counterclaim the ease was sent back for further proceedings in that it appeared that evidence as to what was produced upon the land had been improperly excluded. It will again be noted that in this case the ownership of the farm products raised during the occupancy of the purchaser on sheriff’s sale was not involved. The action was to recover on one side for expenditures and on the other for the use and occupation of the land. In none of the cases has the question of the ownership of crops actually severed from the land been involved, and the cases heretofore cited are decisive only as to the principles of law that a purchaser at sheriff’s sale upon redemption must restore the property purchased; that he must account for the rents, issues and profits of the land held by
“It shall not be deemed waste for the person in possession of the property at the time of sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary .course of husbandry; or to make the necessary repairs to buildings thereon; or to use wood or timber on the property thereof; or for the repair of fences; or for fuel in his family while he occupies the property.”
In the conversion of grass to hay a substantial portion of the value of the finished product is the labor expended in so converting it. This is more true of the
“That the title to crops follows actual possession, and not a right to possession merely, is well established; and that when a person in adverse possession severs crops before recovery, the title thereto is in the former, is equally well established. In Stockwell v. Phelps, 34 N. Y. 363 (90 Am. Dec. 710), it was held that when a party in possession of land, claiming adversely to all others, sells to a third party the hay cut therefrom during such occupancy, the legal title thereto passes to his vendee, as against the party claiming title to said premises, although not in possession: See, also, Brothers v. Hurdle, 32 N. C. 490 (51 Am. Dec. 400); Dollar v. Roddenbery, 97 Ga. 148 (25 S. E. 410); Hinton v. Walston, 115 N. C. 7 (20 S. E. 164). In Page v. Fowler, 39 Cal. 412 (2 Am. Rep. 462), it is held that, while the owner might recover for use and occupation, he could in no case be held to be the owner of the crops grown and actually harvested on the land by the defendant while in possession. The facts in this case are in principle identical, with the facts in the case at bar. In that case it is said: ‘It is undoubtedly true that at common law a person who had been ousted from land might, after a recovery and re-entry, maintain his action of trespass for the mesne profits and for waste, for the reason that, after reentry, the law supposes he has always been seised, and the acts of the defendant were a continuous trespass*295 upon the rightful possession of the plaintiff; hut no ease has been cited in which this principle has been held to make the owner of the land out of possession under such circumstances the owner of the crops grown and actually harvested by the defendant. The very fact that he may recover the rents and profits of the land shows that he cannot recover the crops; for, as was well said in the case of Stockwell v. Phelps, 34 N. Y. 363 (90 Am. Dec. 710), the owner of the land, in such cases, does not recover the value of the crops raised and harvested, but the value of the use and occupation of the land, and the annual crops of grain and grass, which contain both the value of the use of the land and the labor of the farmer, do not, under such circumstances, belong to the owner of the land. It would be an oppressive rule to require everyone who, after years of litigation, perhaps, may be found to have a bad title, to pay the gross value of all the crops he has raised. To the same effect is Johnston v. Fish, 105 Cal. 420 (38 Pac. 979, 45 Am. St. Rep. 53), where the rule is laid down that the doctrine applies to volunteer crops, as well as to crops seeded the same year in which they were gathered.
“In the case at bar the wheat harvested was from a volunteer crop, the original crops having been planted by the defendant. The testimony shows that the first crop was a partial failure, and that it was thought best to allow the second crop to volunteer; but the testimony is undisputed that the volunteer crop was taken care of by the defendant, that it was kept fenced and protected from the ravages of stock, that some $35 worth of poison was purchased and distributed in the ground on which this wheat grew for the purpose of protecting it from destruction by squirrels which infested that part of the country. So that we think that the fact that it is a volunteer crop does not distinguish it in principle from any of the cases cited, and is, as is shown, in that respect identical with the case last above quoted. Quotation is made in this case from Brothers v. Hurdle, 32 N. C. 490 (51 Am. Dec. 400), where the court said: ‘But when one who is in the*296 adverse possession gathers a crop in the course of husbandry, or severs a tree or other thing from the land, the thing severed becomes a chattel; but it does not become the property of the owner of the land, for his title is divested. He is out of possession, and has no right to the immediate possession of the thing; nor can he bring any action until he regains possession. The owner of the land cannot sue for the thing severed in trover or detinue as a chattel, for it is not his chattel. It did not become so at the time it was severed, and the title to it as a chattel cannot pass to him after-wards, when he regains the possession, by force of the jus postliminii. In Faulcon v. Johnston, 102 N. C. 104 (9 S. E. 395, 11 Am. St. Rep. 737), it is held that the owner of land held adversely is not the owner of the crops, and cannot recover them, or their value,from one who has received and converted them, — citing Branch v. Morrison, 51 N. C. 16; Ray v. Gardner, 82 N. C. 454. If there are any cases sustaining the contrary doctrine, they have not been suggested. We think, for many reasons, that the rule announced is a just one, and therefore adopt it.”
In Aultman & Taylor Co. v. O’Dowd, 73 Minn. 58 (75 N. W. 756, 72 Am. St. Rep. 603), it is stated:
“The fact that the owner of the premises may recover the rents and profits of the land for its being withheld, precludes the idea of his right to recover the crops. It is the value and use of the land which the owner recovers, and not the fruits of the land. A contrary rule would give the owner the value of the use of the land, and the value of the labor of the farmer in producing the crop, for the crop contains the value of both.”
If such a rule is applied where the person who severs the crop from the land is essentially a trespasser, the rule should apply with particular force to the condition where a man enters under right and remains under right until' after the severance of the crop from
It is stated in Bruce v. Thompson, 26 Vt. 741 :
“The words ‘rents, issues and profits’ # * cannot be construed to include annual products of the wife’s land. The words have no very marked fitness to express the yearly products which are the joint results of labor and the use of the land. * # Rents, issues and profits apply only to net profits, and such as are of the nature of rent.”
In Re Vedders’ Will, 15 N. Y. Supp. 798, it is said:
“Rents and profits of real estate mean the sum annually yielded by the same.”
It remains, then, to be determined whether plaintiffs are entitled to the relief sought and in the form of a suit in equity. An examination of the complaint shows that the requested relief in equity consists first, of a request for an injunction preventing the defendants from interfering with plaintiffs or using the hay and allowing the plaintiffs to go upon the land and remove the hay for their own use. Second, that the Circuit Court in Harney County will not meet until in April,
“The question is whether the plaintiff has properly conceived his remedy in the present case. Giving the allegations of the complaint their full value, yet it appears that the trespass complained of happened before the commencement of the suit. Injunction is a preventive remedy, and is designed in general to stay the lawless hand before it strikes the blow. We do not, however, impound the water for the wheel after it has run by the mill. It is vain to lock the door of the stable after the horse has been stolen, and it is equally useless to insure a house after it is burned. The trespass having been accomplished before the commencement of the suit, it would be of no utility for a court to enjoin what has already passed.”
It is strongly contended by plaintiffs that as to the 150 tons of hay not cut upon the land sold at sheriff’s sale the complaint states a good cause of suit. Under our holding, as above set out, there is no difference between the ownership of plaintiffs in the hay cut on the land sold on sheriff’s sale and that cut elsewhere. It all belongs to the plaintiffs. The title to the same could have been tried out in a replevin action, or an action at law could have been brought for its conversion by defendants, and a plain, speedy and adequate remedy is afforded at law to the plaintiffs.
Affirmed. Rehearing Denied.