Jones v. Adams

59 P. 811, 37 Or. 473, 1900 Ore. LEXIS 102

• Court: Oregon Supreme Court
• Decided: January 29, 1900
• Status: Published

Opinions

Mr. Justice Bean

delivered the opinion of the court.

The facts out of which this controversy arose are that in June, 1896, a decree was rendered in the Circuit Court for' Klamath County foreclosing a real estate mortgage given by one John L. Hall to the plaintiff in November, 1894, under which the mortgaged premises were sold, and purchased by her on the first day of the following August, and she immediately entered into possession thereof. At the time of her purchase a crop of wheat was growing on the land, one-third of which belonged to Hall and the remainder to his tenant. The day before the sale, Hall gaye a chattel mortgage on his interest in the crop to the Little Klamath Water Ditch Co. to secure a debt, and, after the grain had been harvested, the defendant, as president and superintendent of the company, entered on the premises, and by virtue of such mortgage took and carried away the wheat described in the complaint. The plaintiff thereupon commenced this action for its recovery, claiming to be the owner thereof by virtue of her purchase at the foreclosure sale; and, failing therein, she appeals.

The only question for our determination is whether the ditch company, under its chattel mortgage, or the plaintiff as purchaser, is entitled to Hall’s interest in the grain growing on the land at the time of the sale under the foreclosure decree. Until foreclosure and sale, a mortgagor of real estate is entitled to the possession, rents, issues, and profits thereof. He has an absolute right to all annual crops planted or owned by Mm, and, if they are severed before the sale, he is under no liability to account for them to the mortgagee or purchaser. But under the statute a purchaser at a foreclosure sale is entitled to possession of. the premises from the day of sale, unless they are in the possession of a tenant holding under an unexpired lease, and in such case he is entitled to receive the rents or the value of the use and occupation thereof ; and, if the .annual crops are not severed from the soil prior to the sale, they pass, with the title, to the purchaser, as against the mortgagor and parties claiming an intex’est therein under him subsequent to the mortgage : 2 Jones, Mortg. § 1658 ; 1 Washburn, Real Prop. 144; Wiltsie, Mortg. Forec. § 587 ; 8 Am. & Eng. Enc. Law (2 ed.), 303 ; Batterman v. Albright, 122 N. Y. 484 (11 L. R. A. 800, and note, 25 N. E. 856, 19 Am. St. Rep. 510); Heavilon v. Farmers' Bank, 81 Ind. 249.

1. This is elementary law, and is not questioned by the defendant, but his contention is that the giving of the chattel mortgage to the ditch company by Hall, prior to the'sale under the foreclosux'e decree, was a constructive severance of the growing crops. There is authority for such view (Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284; White v. Pulley, 27 Fed. 436), but it does not commend itself as the better one. The general rule of the common law is that growing crops form a part of the real estate to which they are attached, and follow the title thereto. They are, however, for many purposes, regarded as personal property, and subject to voluntary sale or mortgage by the owner (Reed, St. Frauds, § 708); but the right of a purchaser or mortgagee is subject to the contingency that it may be wiped out by a foreclosure and sale under a mortgage given by the vendor or mortgagor on the land before the crop was sown, unless it is severed from the soil prior to such sale: Sherman v. Willett, 42 N. Y. 146. A real estate mortgage is not only a lien upon the land, but also upon the annual crops growing thereon, unless they belong to a tenant, subject only to the right of severance prior to the sale and entry under the mortgage : 1 Jones, Mortg. § 697 ; Rankin v. Kinsey, 7 Ill. App. 215. Unless there is an actual severance, the crops pass with the title to the soil to which they are attached as against the mortgagor, and a previous sale or mortgage by him will not constitute a severance as against a purchaser at the foreclosure sale. The test is whether there has been an actual severance. If so, the crops become personal property, and do not pass to him who purchases the land subsequent to the severance ; if not, they go with the land : Anderson v. Strauss, 98 Ill. 485 ; Shepard v. Philbrick, 2 Denio, 172 ; Crews v. Pendleton, 1 Leigh, 297 (19 Am. Dec. 750, and note); Beckman v. Sikes, 35 Kan. 120 (10 Pac. 592); Gillett v. Balcom, 6 Barb. 370. It follows that the judgment of the court below must be reversed, and the cause remanded, with directions to enter a judgment in favor of the plaintiff. Reversed.