GAROUTTE, J.
W. J. Clarke and plaintiffs and appellants, executors of the estate of W. J. Clarke, deceased, respectively entered into contracts with one Cobh, whereby said Cobb agreed to farm and cultivate certain lands to grapes and grain for a term of years. For present purposes these contracts were the same, and it was provided therein that the lands were demised and let to said Cobb, he agreeing to give annually for the use thereof a certain portion of the crops of grain and other products grown thereon. At the time these contracts were entered into mortgage liens rested upon the realty. Subsequently, these liens were foreclosed, and under such foreclosure proceedings the mortgagees became the purchasers of the land, and certificates of sale were issued to them. The sales under foreclosure proceedings took place in January and April, respectively, of 1896, and, no redemption intervening, deeds passed to the purchasers six months thereafter. Crops of various kinds were cultivated upon these lands by Cobb under his contracts during the cropping season of 1895-96; and subsequent to the aforesaid sales of the land, and during the period of time allowed by law for redemption, these crops were gathered and harvested by Cobb. As provided in his contract, he set aside the portion thereof to be given for the use of the land. But, upon notice and warning from the purchasers at- the sale, he refused to deliver the same to the plaintiffs, and this action was brought against him by them for a recovery of the possession thereof. Clarke died subsequent to the making of the contract with Cobb, and prior to the foreclosure proceedings. The mortgagee purchasers at the sale, claiming the property by virtue of their purchase, intervened, and-have, become the real defendants in interest.
It is conceded by all parties that the merits of this litigation are dependent upon the construction to be given that portion of section 707 of the Code of Civil Procedure, which provides: “The purchaser, from the time of the sale until a redemption,- [597]*597and a redemptioner, from the time of his redemption until another 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.”
At the threshold of this investigation it becomes important to determine the legal status of the contracts entered into with Cobb by Clarke and his executors. That these contracts were leases, that the conventional relation of landlord and tenant existed between the parties, and that the grains and fruits to be delivered to the landlord when gathered and harvested were rent, we are entirely satisfied. Eent is a compensation paid for the use of land. It need not be money. Any chattels or products of the soil serve the purpose equally as well. These contracts are in no sense cropping contracts. The single difference differentiating them from ordinary conventional leases is that the rent is to be paid in products of the*soil, after harvest, rather than in money. But such difference is wholly immaterial, as changing the character and aspect of the instruments.
It is substantially conceded that the landlord and tenant are not cotenants in the land, but it is claimed that they are cotenants in the crops to be raised. The authorities of this state recognize that such conditions may exist. (Bernal v. Hovious, 17 Cal. 544; 79 Am. Dec. 147; Walls v. Preston, 25 Cal. 59.) But we find no apt words here to disclose such a status. When it is established that a certain contract is a lease, and that the relation of landlord and tenant exists between the parties, there must be some appropriate words in the contract to indicate that the crops raised on the lands are to be held in cotenancy, or such will not be the conclusion reached. If there is nothing in the language to indicate that intention, then the products to be delivered to the landlord after harvest, by the tenant, will be deemed the property of the tenant until that time, and treated as rent to be then paid.
There is but little authority against the views we have here declared. The Hew York authorities almost stand alone as taking a contrary position. The decisions of the highest courts of at least a dozen states hold, upon facts similar to those at bar, in entire accord with the views we entertain. (See Freeman on Cotenancy, sec. 100, note 1.) This court held in Bernal v. [598]*598Hovious, supra, that the contract under consideration in that case was a cropping contract; and, of course, when such is the fact, the title to the products of the land necessarily vest in both parties, for the relation of cotenancy is created. The facts of that case are broadly different, from the facts here presented. Again, that decision is based solely upon the Hew York authorities. , In Walls v. Preston, supra, Bernal v. Hovious, supra, and the Hew York authorities upon which it is based, are reviewed and explained, and the doctrine of the Bernal case limited; In Walls v. Preston, supra, the facts were entirely similar to those found in this record, and after a careful consideration of the principles involved the court said: “It clearly appears to us that the parties in this case intended to make a lease, and that the instrument executed by them was a lease; that its effect as such was not destroyed by their having contracted for the payment to the lessor of a portion of the specific crops to be produced, and that that covenant was an agreement to pay the rent of the premises out of the crops.”
Having arrived at the conclusion that the crops involved in this litigation were rent due from the tenant Cobb to his landlord, Do the provisions of section 707 of the code heretofore quoted give them to the purchaser at the foreclosure sale? These products were the rents to be annually paid for the use of agricultural and vineyard lands. They were due and payable, at a certain period of the year, and that period occurred after the purchase from the sheriff, and prior to the time when right of redemption was barred. These contracts stood exactly as though the land had been rented for a cash rental of twelve hundred dollars per annum, payable at harvest time. Upon such a state of facts it could not be claimed for a moment that the purchaser at the sheriff’s sale would be entitled to the entire amount of rent due and payable for the use of the land for the entire year. If the foreclosure sale had occurred one day prior to the day when the rent was due and payable, upon such a line of reasoning the purchasers would be entitled to the entire twelve hundred dollars. If rent was payable semi-annually, and no rent happened to fall due during the time intervening between the purchase under foreclosure and the expiration of redemption, it certainly could not be claimed that the purchaser [599]*599was not entitled to any rent. In the eyes of the statute the material question is not, When does rent become due and payable? but it is, What amount of rent has the property earned subsequent to the purchase, and prior to the redemption? By virtue of the statute, if the property is not rented the purchaser may sue for the value of the use and occupation; and the value of the use and occupation would be such value for the time the purchaser held under his certificate of sale. And, likewise, a recovery for rent would necessarily be limited to the amount earned for that time.
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GAROUTTE, J.
W. J. Clarke and plaintiffs and appellants, executors of the estate of W. J. Clarke, deceased, respectively entered into contracts with one Cobh, whereby said Cobb agreed to farm and cultivate certain lands to grapes and grain for a term of years. For present purposes these contracts were the same, and it was provided therein that the lands were demised and let to said Cobb, he agreeing to give annually for the use thereof a certain portion of the crops of grain and other products grown thereon. At the time these contracts were entered into mortgage liens rested upon the realty. Subsequently, these liens were foreclosed, and under such foreclosure proceedings the mortgagees became the purchasers of the land, and certificates of sale were issued to them. The sales under foreclosure proceedings took place in January and April, respectively, of 1896, and, no redemption intervening, deeds passed to the purchasers six months thereafter. Crops of various kinds were cultivated upon these lands by Cobb under his contracts during the cropping season of 1895-96; and subsequent to the aforesaid sales of the land, and during the period of time allowed by law for redemption, these crops were gathered and harvested by Cobb. As provided in his contract, he set aside the portion thereof to be given for the use of the land. But, upon notice and warning from the purchasers at- the sale, he refused to deliver the same to the plaintiffs, and this action was brought against him by them for a recovery of the possession thereof. Clarke died subsequent to the making of the contract with Cobb, and prior to the foreclosure proceedings. The mortgagee purchasers at the sale, claiming the property by virtue of their purchase, intervened, and-have, become the real defendants in interest.
It is conceded by all parties that the merits of this litigation are dependent upon the construction to be given that portion of section 707 of the Code of Civil Procedure, which provides: “The purchaser, from the time of the sale until a redemption,- [597]*597and a redemptioner, from the time of his redemption until another 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.”
At the threshold of this investigation it becomes important to determine the legal status of the contracts entered into with Cobb by Clarke and his executors. That these contracts were leases, that the conventional relation of landlord and tenant existed between the parties, and that the grains and fruits to be delivered to the landlord when gathered and harvested were rent, we are entirely satisfied. Eent is a compensation paid for the use of land. It need not be money. Any chattels or products of the soil serve the purpose equally as well. These contracts are in no sense cropping contracts. The single difference differentiating them from ordinary conventional leases is that the rent is to be paid in products of the*soil, after harvest, rather than in money. But such difference is wholly immaterial, as changing the character and aspect of the instruments.
It is substantially conceded that the landlord and tenant are not cotenants in the land, but it is claimed that they are cotenants in the crops to be raised. The authorities of this state recognize that such conditions may exist. (Bernal v. Hovious, 17 Cal. 544; 79 Am. Dec. 147; Walls v. Preston, 25 Cal. 59.) But we find no apt words here to disclose such a status. When it is established that a certain contract is a lease, and that the relation of landlord and tenant exists between the parties, there must be some appropriate words in the contract to indicate that the crops raised on the lands are to be held in cotenancy, or such will not be the conclusion reached. If there is nothing in the language to indicate that intention, then the products to be delivered to the landlord after harvest, by the tenant, will be deemed the property of the tenant until that time, and treated as rent to be then paid.
There is but little authority against the views we have here declared. The Hew York authorities almost stand alone as taking a contrary position. The decisions of the highest courts of at least a dozen states hold, upon facts similar to those at bar, in entire accord with the views we entertain. (See Freeman on Cotenancy, sec. 100, note 1.) This court held in Bernal v. [598]*598Hovious, supra, that the contract under consideration in that case was a cropping contract; and, of course, when such is the fact, the title to the products of the land necessarily vest in both parties, for the relation of cotenancy is created. The facts of that case are broadly different, from the facts here presented. Again, that decision is based solely upon the Hew York authorities. , In Walls v. Preston, supra, Bernal v. Hovious, supra, and the Hew York authorities upon which it is based, are reviewed and explained, and the doctrine of the Bernal case limited; In Walls v. Preston, supra, the facts were entirely similar to those found in this record, and after a careful consideration of the principles involved the court said: “It clearly appears to us that the parties in this case intended to make a lease, and that the instrument executed by them was a lease; that its effect as such was not destroyed by their having contracted for the payment to the lessor of a portion of the specific crops to be produced, and that that covenant was an agreement to pay the rent of the premises out of the crops.”
Having arrived at the conclusion that the crops involved in this litigation were rent due from the tenant Cobb to his landlord, Do the provisions of section 707 of the code heretofore quoted give them to the purchaser at the foreclosure sale? These products were the rents to be annually paid for the use of agricultural and vineyard lands. They were due and payable, at a certain period of the year, and that period occurred after the purchase from the sheriff, and prior to the time when right of redemption was barred. These contracts stood exactly as though the land had been rented for a cash rental of twelve hundred dollars per annum, payable at harvest time. Upon such a state of facts it could not be claimed for a moment that the purchaser at the sheriff’s sale would be entitled to the entire amount of rent due and payable for the use of the land for the entire year. If the foreclosure sale had occurred one day prior to the day when the rent was due and payable, upon such a line of reasoning the purchasers would be entitled to the entire twelve hundred dollars. If rent was payable semi-annually, and no rent happened to fall due during the time intervening between the purchase under foreclosure and the expiration of redemption, it certainly could not be claimed that the purchaser [599]*599was not entitled to any rent. In the eyes of the statute the material question is not, When does rent become due and payable? but it is, What amount of rent has the property earned subsequent to the purchase, and prior to the redemption? By virtue of the statute, if the property is not rented the purchaser may sue for the value of the use and occupation; and the value of the use and occupation would be such value for the time the purchaser held under his certificate of sale. And, likewise, a recovery for rent would necessarily be limited to the amount earned for that time.
In the case at bar, where the rent is an annual rent, the purchasers at the foreclosure sales are entitled to an amount of rent in proportion as the time intervening between their pur-i chases and the expiration of the year-term bears to one year.); (Providing, of course, the six months’ term of redemption had not expired in the mean time.) In Reynolds v. Lathrop, 7 Cal. 43, it is held that: “The efEect of the sale was equivalent to an assignment of the lease for the time.” The contention that rent payable by the year is indivisible is unsound. Undoubtedly, the statute could provide for a division of it. It must be borne in mind that the whole matter of redemption is purely statutory, and the statute seems to contemplate a proportionate division of the rents. It was intended by this statute to give the purchaser at the sale the fruits of the land produced while he held the certificate of purchase—only this and nothing more. To support a construction which would give the purchaser at the. sale— perchance a purchaser of a single day—the rents of property under a lease for years, for the sole reason that rents for the entire period happen to become due and payable upon that day, would seem to wander far from the intention of the legislature in enacting the statute. If such construction obtain, evidently the statute would at once become useless legislation. For upon the day of sale, by reason of previous mutual arrangements between the judgment debtor and the tenant, all questions of rent would have been compromised and settled. We cannot bring ourselves to hold that if the mortgagor himself is in possession he is liable only for the value of the use and occupation after the sale, while if the tenant under the mortgagor is in possession, all rents ow.ing by the tenant for an unlimited period in the past, and which [600]*600happen to become dne while the certificate of purchase is held by the purchaser at the sale, are his property. As to the general principle of law, that a transfer of real estate carries with it rents earned but not yet due, we are not concerned.
There is nothing in the contention of respondents that the purchasers at the sale, conceding that the landlord at the time had an interest in the crops, took such interest under the certificate of sale issued by the sheriff. Tf there had been no tenant, and the owner had cultivated the land and possessed the crop, such crop would not have passed by the certificate of sale. This court has repeatedly held that the owner has the right to retain and harvest the crops grown and ripened pending the time of redemption.
For the foregoing reasons the judgment .is reversed, with directions to the trial court to enter judgment in accordance with the views heretofore expressed.
Van Fleet, J., McFarland, J., Temple, J., and Henshaw, J., concurred.