59 Mo. App. 387 | Mo. Ct. App. | 1894
The owner of certain farming lands in Cooper county, June 26, 1890, gave a deed of trust thereon, to secure the payment of a promissory note. Afterward the owner died and his administratrix, in the month of March, 1891, rented the land tQ a tenant who planted a crop of corn, which he sold about the first of July, while growing, to one Harness, receiving part of the purchase money. On the twenty-ninth of August, 1891, the land was sold under the provisions of the deed of trust, one Watson becoming the purchaser at such sale. Harness who had purchased the com of the tenant, as stated, paid the purchase money due thereon into court, the two claimants Watson and the tenant, interpleading for the same. The trial court gave instructions declaring Watson, the purchaser of the land, to be entitled to the money arising from the sale of the com, and the tenant has brought the case here by appeal. It is important to state that the evidence tends to show that a part of the corn was severed and delivered to Harness before the sale under the deed of trust and that the balance was severed and taken away after the sale.
In our opinion the purchaser of the land at the sale
But the title to that portion of the crop which had been sold and severed before the sale took place was not conveyed by the sale of the land under the deed of trust. For the growing crop planted by the mortgagor or his tenant in possession, is only subject to the lien of the deed of trust while it remains unsevered. If it remains standing upon the land at the date of the sale under the deed of trust, the purchaser becomes the owner thereof as completely as he does of the land of which the unsevered crop is but a part. When, however, it is severed by the mortgagor or his tenant in possession, or, which is the same thing, by the vendee of either, then it is no longer subject to the lien of a deed of trust and a sale under the deed of trust will not convey title to such severed crop. This proposition was satisfactorily passed upon in Vogt v. Cunningham, 50 Mo. App. 136. Questions bearing more or less analogy to the one here presented were considered in the cases of McAllister v. Lawler, 32 Mo. App. 91; Oyster v. Oyster, 32 Mo. App. 270; Wallace v. Cherry, 32 Mo. App. 436, and the cases cited in these opinions. None of them are considered as conflicting with the views herein expressed.
The first instruction asked by the appellant should have been given. The judgment is reversed and the cause remanded.