180 N.W. 529 | N.D. | 1920
Lead Opinion
The controversy before us involves the ownership or right of possession of certain grain, which was grown during the redemption period on certain lands, purchased by the plaintiffs at a mortgage foreclosure sale.
The case arose upon the following facts:
The defendant, Albert S. Olson, owned the W. section 26, township 157, range 72, in Pierce county, in this state. On November 22, 1915 he made a written contract or lease with the defendant W. D. Lyter, under the terms of which Lyter agreed to farm the land during the following farming season, to-wit: for a term commencing on the date of the contract and ending October 1, 1916. The owner of the land (Olson) agreed to furnish the seed. Each of the parties agreed to pay one half of the twine and threshing bills. Lyter agreed to deliver to the landowner (Olson) free of all charges, at Earo or Bug’by, •one half of all grain raised. Lyter was to have free use of pasture ou the land. No new lease or contract was made, but the lands were cropped each year under the arrangement prescribed in the written contract. This action involves the crop grown in 1919.
It appears that Olson mortgaged the premises. Default was made in the conditions of the mortgage, the premises were sold to the above-
The plaintiffs, basing their right to recover upon the certificate of mortgage sale, brought an action in claim and delivery to recover the landlord’s share of the crop. The defendant bank, answered and asserted that it had a special property in the grain by virtue of its mortgage. This action was commenced September 3, 1919. The case was tried to a jury, but at the close of all the testimony both parties moved for directed verdicts. The court, after discharging the jury, made findings of fact and conclusions in favor of the plaintiffs. The defendants Olson and Citizens State Bank of St. Peter have appealed from the judgment.
The first assignments of error relate to procedural matters.
It appears that the only defendant who appeared and answered was the Citizens State Bank of St. Peter. The defendant, Olson, although served, defaulted. Upon the trial the attorneys who appeared for the bank prepared an amended answer which purported to be an answer both in behalf of the bank and the defendant Olson. The court refused to permit the answer to be interposed in behalf of Olson. Such refusal is assigned as error. Inasmuch as the assignment is not supported by argument, it should be deemed Avaived. But if considered, the assignment must be held to be without merit. The defendant Olson was clearly in default. No application to set aside the default was made, and no shoAving submitted why he should be relieved from his neglect. Clearly, there is no basis for holding that the trial court abused its discretion 'in making the ruling which it did. The defendant Olson is therefore virtually eliminated from the ease, so far as the remaining questions presented on this appeal are concerned.
It appears that on September 3, 1919, the defendant W. D. Lyter,
Appellants contend that the effect of Lyter’s application was to place the grain in custodia legis; and that, hence, it was not subject to claim and delivery proceedings. We are of the opinion that the contention is without merit. It will be noted that Lyter had merely noticed for hearing his application for leave to make deposit. The matter had not come on for hearing or been determined. And upon the trial of this action it was specifically admitted that no deposit was made. The record shows that the following colloquy took place between appellants’ counsel and the trial judge:
The Court: “It is agreed, is it, that no deposit was ever made of any property under order of this court ?”
Defendants’ Counsel: “Yes, I think that is true.”
The Court: “And there was nothing more done about the question of the deposit?”
Defendants’ Counsel: “No deposit was ever made, I know that.”
Appellants further contend that the grain was not in the possession of either Olson or the bank at the time the action was commenced, or at any time prior to the seizure thereof by the sheriff, and hence that an action in claim and delivery will not lie.
In our opinion appellants are precluded from raising any such question. The sheriff seized the grain on controversy on September 4, 1919. Shortly thereafter the appellant bank gave a redelivery bond
It should, also be remembered that in this case the defendant ’Citizens’ State Bank of St. Peter, Minnesota, in its answer asserted that it was entitled to the possession of the grain and prayed that the court adjudge that it was entitled to such possession. In so far as such demand is concerned, the defendant must be deemed the actor. 24 Am. & Eng. Enc. Law, 484; see also subd. 3, § 7635, Comp. Laws 1913; 18 Enc. Pl. & Pr. p. 605.
This brings us to the merits of the controversy.
The rights- of the plaintiffs are predicated upon § 7762, Comp. Laws 1913, Avhich provides: “The purchaser from the time of the sale until a redemption . . , is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof.”
Appellants contend that this statute is no longer in effect, and call attention to the fact that it was amended by chapter 132, Law's 1919, to read as follows: “The debtor under an execution or foreclosure sale of his property shall be entitled to the possession, rents, use, and benefit of the property sold from the date of such sale until the expiration of
Appellants contend, however, that plaintiffs have established no cause of action under § 7762. They say that there was no rent coming from a tenant in possession; that the share of the crop which Lyter agreed to deliver to the landowner did not represent rent, and that plaintiffs were entitled to recover only the value of the use and occupation of the land.
We are of the opinion that these contentions are all answered by the decision of this court in Whithed v. St. Anthony & D. Elevator Co. 9 N. D. 224, 50 L.R.A. 254, 81 Am. St. Rep. 562, 83 N. W. 238. The written agreement in this case is substantially like that in the Whithed Case. In fact there is no contention that there is any difference except that in this case the landowner furnished the seed. In all other respects the written agreement in this case is substantially the same as the agreement in the Whithed Case. The stipulations relating to reciprocal obligations, reservation of title in the landowner, and against subletting are the same. In this contract, as in the contract in the Whithed Case, there is a provision that the tenant will “commit no waste, or damage on said real estate and to suffer none to be done.” The contract in this case also provides that in case of a sale of the land before Lyter begins seeding the same the contract shall be null and void and “possession of said premises immediately surrendered by said first party.” We are entirely satisfied that it was the intention of the parties that Lyter should have the use and posses
In the Whithed Case this court said: “The statutory right to rent during the redemption period does not limit the purchaser to the recovery of money rent. The word 'rent’ is comprehensive, and embraces 'the compensation, either in money, provisions, chattels, or labor received by the owner of soil from the occupant thereof.’ 3 Kent, Com. 460; 2 Stephens, Com. 23; Jackson & G. Land. & T. § 38. It is not necessary to technically classify the contract under which the land in question was farmed during the period of redemption. It is sufficient for the purposes of this case that it is the contract which fixed the compensation of the owner of the land for its use, and that the compensation so fixed is the wheat here involved. . . . We therefore hold that the plaintiff by his purchase at the foreclosure sale was substituted to the rights which the owner of the land had in the contract under which it was operated during the period of redemption. . . .
“I do not think that the fact that the owner of the land was in this case to hold the title to the crop destroys the contract as a lease. Bather, to my mind, it has the opposite effect. The express provision was inserted because the parties understood that if it was not inserted the title would be in the lessee, and, as stated it ivas inserted as security, and to that extent the provision is in the nature of a mortgage. But it is certain that the owner intended by the contract to dispossess himself and place the tenant in possession, and that, too, not merely for the time necessary to produce a crop, but for a year certain; and that during the entire term, if the tenant performed his covenants, any interference with his possession by the owner would have been a trespass. Among the results that follow at common law if the contract be considered as a leasé is the fact that a conveyance of the reversion carries with it all rents under the lease which have not already become due, and ripened into a right of action for money in the hands of the lessor. . . .
Section 5538, Rev. Codes (§ 7751, Comp. Laws 1913) declares, 'Upon a sale of real property the purchaser is substituted to and ac
The language quoted is directly applicable here.
Appellants contend, however, that the rule announced in the Whithed Case was changed by the recent decision of this court in Minneapolis Iron Store Co. v. Branum, 36 N. D. 355, L.R.A.1917E 298, 162 N. W. 543. An examination of the two decisions will, we think, disclose that the contention is wholly unfounded. The controlling questions in the Whithed Case were whether the contract was in legal effect a lease; whether the party farming the land thereunder was a tenant in possession; and whether the purchaser at a foreclosure sale might maintain an action in claim and delivery for the share of the crop which the contract stipulated should belong to the landowner. The question presented in the Branum Case was whether one in possession of, and farming, land under a farm contract, reserving title to the crops in the landowner, until the grain was threshed and divided, had a mortgagable interest in the growing crops. This court held that such contract was in legal effect a lease, and that the tenant had an equitable interest in such growing crops which he might mortgage. Instead of detracting from the effect of the Whithed Case, the decision in the Branum Case seems rather to lend support to the rule announced therein, in so far as the questions presented in this case are concerned. Under the Branum Case, Lyter was clearly a tenant in possession of the premises involved in this case. It is also interesting
The appellants contend, however, that in any event the judgment should be reduced in a sum equal to the value of the seed furnished and the amount of the twine bill and threshing bill paid. In so far, as the value of the seed is concerned we do not believe the contention is tenable. Such seed was furnished before the mortgage foreclosure sale was made; and at the time the sale was made the crops in question were then growing on the land and the purchaser at the sale was justified in believing that he would receive from the tenant in possession of the land the amount of the landowner’s share; that is, the amount fixed for rent. Whithed v. St. Anthony & D. Elevator Co. supra. They were, however, charged with notice of, and bound by, the provisions of the contract. They could demand as much from Lyter as Olson could have demanded, but they could demand no more. Whithed v. St. Anthony & D. Elevator Co. 9 N. D. 224, 229, 50 L.R.A. 254, 81 Am. St. Rep. 562, 83 N. W. 238. Under the terms of the contract the landowner was required to pay one half of the twine bill and one half of the total threshing bill. In other words, the landowner was required to pay for the twine nécessary to bind his share of the grain and pay for the threshing of such share. The purchasers ltnew at the time they purchased, that these items of expense would be chargeable .against their share of the grain. And while it is true that a set-off is not allowable in an action of replevin in the ordinary sense in which it is allowable in other forms of action, still damages growing out of the same subject-matter may be considered in reducing the damages claimed or allowable in the replevin action; “and courts are inclined to give the action such flexibility as to adjust all equities arising between the parties in such action.” Cobbey, Replevin, 2d ed. § 794. See also Stavens v. National Elevator Co. 36 N. D. 9, 161 N. W. 558.
It is admitted that the appellant paid the twine and threshing bills or caused them to be paid. It does not appear definitely to whom or when they were paid. But manifestly the threshing bill could not have been paid until at the time, or after, the threshing was done;
There is no question as to the amounts of the twine and the threshing bills. The amounts were stipulated. Nor is there any question but that these hills constituted valid charges against the share of the grain claimed by the plaintiffs. If these bills are deemed extinguished tbe plaintiffs are the beneficiaries of the payments to the full amount of the bills. If the bills are deemed to be existing, the appellant should be deemed subrogated to the rights of the original owners of the bills. If plaintiffs rceive the grain it is only just that they should be required to pay these claims. The judgment against the appellants while alternative in form is in effect a money judgment, for it is admitted that the appellant bank sold the grain and received payment therefor. In our opinion the judgment should he reduced in the sum of $132.50, the aggregate of the twine and threshing bills; and as so reduced should be affirmed. That will be the order and judgment of this court. Neither party will recover costs on this appeal.
Dissenting Opinion
(dissenting). I dissent on the ground that a purchaser of land at foreclosure sale gets only the land that he purchases, lie gets only the land after the year of redemption. It is trae that under an execution sale it is provided by statute that the purchaser from the time of the sale until a redemption is entitled to receive from the tenant' in possession the rents of the property sold for the value of the use and occupancy. Comp. Laws, § 7762. But that section expressly applies to sales on execution and it does not apply to sales under a mortgage.
Dissenting Opinion
(dissenting). As I view this ease, the purchasers at the foreclosure sale during the year of redemption were not entitled to any rents nor profits. After the expiration of the year of redemption, and no redemption having been made, they would be entitled to the land.
During the year allowed for redemption, Olson was the owner of the land and entitled to crop the same, and such crops were his, unless he voluntarily mortgaged or disposed of them. lie had a right to give a chattel mortgage on the crops thereon to the Citizens’ State Bank of St. Peter; and, as we view the matter, that chattel mortgage was a valid and subsisting lien against the crops.
As we understand the majority opinion, it contains nothing which conflicts with the rule laid down in the case of Minneapolis Iron Store Co. v. Branum, 36 N. D. 355, L.R.A.1917E, 298, 162 N. W. 543, where, in substance, it was held that one in possession under a farm contract, reserving title to the crops in the landowner, until the grain was threshed and divided, had a mortgagable interest in the growing crops, and that he and the landowner were tenants in common, and that the tenant had an equitable interest in such growing crops, which he might mortgage.
The majority opinion recognizes the correctness of the rule as stated in that case, and the matter needs no further discussion.
