229 N.W. 365 | N.D. | 1930
The plaintiff, as alleged owner of certain wheat, seeks to recover damages for the conversion thereof. The case was tried to a jury; but at the conclusion of all the evidence both parties moved for a directed verdict. The jury was thereupon discharged and the trial court made findings of fact and conclusions of law, and ordered judgment to be entered, in favor of the defendant. Judgment was entered accordingly and the plaintiff appeals.
The appeal presents only questions of law. The material and undisputed facts are substantially as follows: On February 16, 1920, Jensine Wendahl and her husband, Conrad, were the owners of a quarter section of land in Dunn county in this state. On that day they executed a mortgage to the First Loan Securities Company to secure the payment of a note for $2500.00. The mortgage was duly recorded, and was assigned by the mortgagee to the plaintiff Zeigler. Default having occurred in the conditions of the mortgage, it was foreclosed; and on July 6th, 1927, Zeigler purchased the premises at foreclosure sale. No redemption was made and on August 1, 1928 a sheriff's deed was executed and delivered to the plaintiff Zeigler pursuant to the foreclosure. The Wendahls remained in possession of the premises during the period of redemption. In the spring of 1928 they planted and in the fall of that year they harvested and threshed a crop of wheat. The grain was harvested and threshed after the sheriff's deed had been executed and delivered to Zeigler; but Wendahl's possession was never interfered with. It is undisputed that Wendahl remained in uninterrupted possession of the premises until after the grain had been harvested, threshed and removed from the premises. On September 12th, 1928, while the grain was being threshed, the defendant sheriff made a levy upon the grain as the property of Wendahl, under an execution issued upon a judgment against him. Some six days after the levy the plaintiff served upon the sheriff a third party claim wherein he asserted that the wheat levied upon was his property and not the property of Wendahl. The only question for determination is whether in the circumstances stated the plaintiff was the owner of the grain. The trial court held that such ownership had not been established; that the grain *260
belonged to Wendahl, and, hence, was subject to levy as his property. In our opinion the trial court was correct in so holding. The ownership of realty carries with it as an incident thereto the presumption of the ownership, not only of the natural products of the land, but also of the annually sown crops. And where the owner of land sells it with a right of immediate possession in the purchaser and without any reservation of the emblements, or annually sown crops, the purchaser is entitled to hold and claim the crops as his own property as against his vendor. The same result follows where a person obtains title through a sheriff's deed issued upon execution or foreclosure sale. Such deed passes to the purchaser the legal title to the land; and the annual crops then growing thereon pass with the land to the grantee in such deed. Hendricks v. Stewart,
In Aultman T. Co. v. O'Dowd,
In Lyons v. Adel,
"The facts of this case are within the general rule that where a mere *262
intruder upon lands plants crops thereon, such crops, so long as they remain unsevered, are the property of the owner of the land; but one who sows, cultivates, and harvests a crop upon the land of another is entitled to the crop as against the owner of the land, whether he came to the possession of the land lawfully or not, provided he remains in possession till the crop is harvested. 12 Cyc. 977; Churchill v. Ackerman,
In Power Mercantile Co. v. Moore Mercantile Co.
The Supreme Court of Montana, after stating that upon sale of the land, in the absence of reservation of title thereof, annual growing crops would, in case of sale with the right of immediate possession, pass to the purchaser together with the land upon such purchaser taking possession before severance, said:
"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, *263
and harvested them when ripe, and thus appropriates to himself, as owner, that which has now become detached from the soil and ceased to be incidental or accessory to the land or the enjoyment of it. A tenant by sufferance is one who wrongfully remains in occupancy after his right to possession has ended. He holds over as the result of the owner's neglect or laches. He has the mere occupancy or actual possession, without any title to the land or any estate in it; he is not in privity with the owner, who may re-enter when he pleases and so terminate the tenancy without notice. While he is not entitled to gather crops which he had sowed, but which he did not reap, during his wrongful occupation, still `until the determination of his tenancy he is not a trespasser, and the crops he severs and gathers while his tenancy continues are his as against' the landlord or owner entitled to possession. Wolcott v. Hamilton,
Appellant contends, however, that this court in Hendricks v. Stewart,
Appellant is clearly in error as regards the rule announced by this court in Hendricks v. Stewart and Tanous v. Tracy. Neither of these cases involved the question of ownership of crops that had been sown and harvested by a trespasser or a tenant at sufferance. Jones, Land. T. § 220, et seq. In both of these cases the grantee in the sheriff's deed asserted his ownership and right to the growing crops before they had been severed. The decision in Hendricks v. Stewart, supra, instead of denying, expressly recognized, the rule that if a person who has planted a crop is permitted to remain in possession of the land and sever it that then the crop will belong to him and not to the grantee in the sheriff's deed. This court said: "In the case of matured crops or severed crops, it is held that they may be regarded as personalty, and the right of a debtor or mortgagor, while in rightful possession, to dispose of them in their matured or severed condition, is quite generally recognized."
In Tanous v. Tracy, a crop was produced by persons who entered the land and planted crops, during the period allowed for redemption, as lessees or tenants of the mortgagor. They "put in and raised the crop with the consent of both mortgagor and mortgagee."
Judgment affirmed.
BURKE, Ch. J., and BIRDZELL, NUESSLE, and BURR, JJ., concur.