282 P. 522 | Cal. Ct. App. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *12 THE COURT.
Defendant H.G. Johnson has appealed from a judgment for $2,616.66 which was recovered against him by plaintiff Yakoobian. The plaintiff alleged that appellant converted to his own use certain crops of grapes and figs on which the former held a mortgage in the sum of $2,500. By a second count in the form of an action for money had and received he sought to recover to the extent of the mortgage the sums received by appellant from the sale of the crops.
The following are the facts of the case: Some time before the year 1924 appellant agreed to sell the land on which the crops were grown to S. Papazian. By the contract one-half of the crops to be produced thereon were reserved as security for the payment of the installments of the purchase price. Thereafter on January 4, 1924, Papazian mortgaged to the plaintiff one-half of the crops to be produced thereon during the years 1924 and 1925 to secure a note for $2,500 payable to the plaintiff on or before October 1, 1924. During the crop season of 1924 Papazian sold a portion of the crops and received therefor amounts aggregating $1,713.67. Thereafter he defaulted in the performance of his contract with appellant and on September 4, 1924, the latter instituted an action to terminate his rights under the contract and for the recovery of the possession of the land. A judgment terminating the vendee's rights was entered on March 7, 1925, following which appellant went into possession. Upon the filing of that action the court, on the application of appellant, appointed a receiver, who took possession of the crops. The receiver proceeded to market the same and *13 received therefor a total of $4,411.64. After deducting his expenses and fees he paid to appellant the sum of $685 in cash and expended for the latter's benefit the following amounts: $81.65 for insurance on the buildings situated on the property; $368.21 for taxes; and $2,280 in payment of the accrued interest on the mortgage upon the land executed by appellant; the total amount received directly and indirectly by the latter being the sum of $3,330.71. It is admitted that the crop was removed by the receiver without the consent of the plaintiff. In addition to the above facts the trial court found that the value of the crop taken by the receiver was about $5,000 and in accordance with the allegations of the complaint that appellant became indebted to the plaintiff for money had and received in the sum of $2,616.66, this being the amount of the mortgage and accrued interest.
Appellant contends that in view of the facts the plaintiff had no valid claim to the crop and that the conclusion of the trial court cannot be supported. [1] In the absence of a stipulation to the contrary a vendee let into possession is entitled to the crops raised by him (Lewis v. Hall,
[2] And where, as here, the contract expressly provided that half the crops were reserved as security for the payment of installments of the price of the land, manifestly it was not the intention of the parties that the vendor should retain the ownership thereof but a lien thereon for the price (Palmer v.Howard,
[6] Appellant claims that the portion of the crops removed and sold by Papazian was necessarily a part of the undivided half thereof which was subject to plaintiff's lien and that the latter's security was to that extent diminished. Whether Papazian's acts would have had the effect claimed had appellant's lien continued, we need not decide, but as between the plaintiff and Papazian the latter's wrongful act could not affect the plaintiff's rights, and so long as any crops owned by Papazian remained upon the land the same would still be subject to the lien of the mortgage. Having relinquished his lien, appellant was not in a position to assert that the rights of the plaintiff were diminished by the wrongful acts of the vendee.
[7] It is also contended that the receiver was not the agent of the appellant, but an officer of the court for whose acts he was not responsible. However this may be, appellant received the proceeds of the crops which were subject to the lien of plaintiff's mortgage and to which the latter by reason thereof was equitably entitled. Under such circumstances the money may be recovered. (Gray v. Huffaker,
*16The judgment is affirmed.