Smith v. Howell

176 P. 805, 91 Or. 279, 1918 Ore. LEXIS 231

• Court: Oregon Supreme Court
• Decided: December 24, 1918
• Status: Published

Opinion

OLSON, J.

This case coming up on demurrer to the amended complaint the allegations therein, as far as this court is concerned, form the undisputed facts. The question presents itself in a two-fold aspect. First, are the plaintiffs the owners of the hay cut and severed from the realty, and, second, are the plaintiffs entitled to the equitable relief sought in this suit. As to the first point it is contended by the defendants that upon the redemption of realty from the sheriff’s sale, all crops raised upon the premises during the time the purchaser under such sheriff’s sale holds possession of the property, belong to the redemptioner in specie upon the exercise of his right of redemption. They base their contention upon the Oregon cases of Cartwright v. Savage, 5 Or. 397; Fields v. Crowley, 71 Or. 141 (142 Pac. 360), and Reichert v. Sooy-Smith, 85 Or. 251 (165 Pac. 1174, 1184).

In the Cartwright case the property was sold on sheriff’s sale on July 26th, and immediately thereafter the purchaser harvested a crop of wheat. Action was brought by the redemptioner to recover from such purchaser, after redemption, the value of the wheat so harvested. A demurrer was interposed in the case and sustained. The plaintiff stood on his complaint and appealed. The court held that the demurrer should not have been sustained and remanded the case for further proceedings. In that case the action was not to recover the grain harvested in specie nor was the title to the grain so harvested in question. The action was to recover the value of the crop of wheat and upon the case being remanded to the lower court the question as to what the actual value of his crop was, would naturally be determined upon the answer of defendant and the evidence later introduced.

In Fields v. Crowley, 71 Or. 141 (142 Pac. 360), the sheriff’s sale was as to real property upon which buildings were located. The purchaser under the sheriff’s sale took possession of the same and retained them until the redemption. An action was brought for the reasonable rental value of the hotel building, saloon, outhouses and barn located on said property. A demurrer was interposed to the complaint and sustained by the court and judgment for costs entered against plaintiffs, and they appeal. The case was reversed citing the Cartwright case and sent back for further proceedings. The clear holding of the Fields v. Crowley case, 71 Or. 141 (142 Pac. 360), is stated on page 148 (142 Pac. 362):

“But, where the purchaser takes possession of the purchased premises, and occupies, uses, or rents them, and the execution debtor redeems, the latter is entitled to recover from him the value of the rents, issues and profits of the premises during the time he has occupied, used, or rented them in the interim between the date of the sale and the redemption.”

It will be noted, however, in the Fields case there is no attempt to recover in specie the product of the real property, but it is merely an action to recover the reasonable rental value of the land and its appurtenances, and for the purpose of fixing such reasonable rental value it is alleged that the rents, issues and profits of said property amount to the sum claimed.

In the case of Reichert v. Sooy-Smith, 85 Or. 251 (165 Pac. 1174), an orchard was sold on sheriff’s sale and the purchaser entered into possession and pruned and trimmed the same. Upon a redemption being made he brought suit against the redemptioner for the moneys expended by him in the care of said orchard and for the reasonable value of his services thereon. The redemptioner brought a counterclaim for use and occupation of the premises. A demurrer was interposed to the complaint and also to the counterclaim. The demurrer to the complaint was overruled and a trial was had before a jury which rendered judgment for the plaintiff. Such judgment was reversed for the reason that the court held that no purchaser at a sheriff’s sale could, by making improvements on the property, charge the redemptioner with the legal duty to pay for the same upon redemption and, therefore, the demurrer should have been sustained. As to the counterclaim the ease was sent back for further proceedings in that it appeared that evidence as to what was produced upon the land had been improperly excluded. It will again be noted that in this case the ownership of the farm products raised during the occupancy of the purchaser on sheriff’s sale was not involved. The action was to recover on one side for expenditures and on the other for the use and occupation of the land. In none of the cases has the question of the ownership of crops actually severed from the land been involved, and the cases heretofore cited are decisive only as to the principles of law that a purchaser at sheriff’s sale upon redemption must restore the property purchased; that he must account for the rents, issues and profits of the land held by virtue of his sheriff’s certificate of sale, that he will not be allowed to recover from the redemptioner for expenditures for permanent improvements or otherwise as such, and that he is not liable for waste allowed by Section 251, L. O. L.

1. It is a principle of law too well established to require extensive citation that when a growing crop, whether fructus industriales or fruetus naturales, becomes upon severance from the realty personalty. In the case of landlord and tenant it has even been carried so far as by use of a fiction to hold some of such crops personalty even before severance.

2, 3. It will be noted in the case at bar that the hay was harvested and placed in stacks and surrounded by fencing before the redemption. It was as clearly personal property as if it had been removed entirely from the premises. During all the time it was being converted from grass attached to the land, to hay, personal property, the plaintiffs were rightfully in possession of the land. They had a right to cut this hay by virtue of our statute, for it is stated in Section 251, L. O.L.:

“It shall not be deemed waste for the person in possession of the property at the time of sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary .course of husbandry; or to make the necessary repairs to buildings thereon; or to use wood or timber on the property thereof; or for the repair of fences; or for fuel in his family while he occupies the property.”

In the conversion of grass to hay a substantial portion of the value of the finished product is the labor expended in so converting it. This is more true of the cutting of natural wild or marsh hay than in the harvesting of cultivated grasses. This question has come up in a great many jurisdictions over the right of a tenant holding over after the expiration of his lease to hold crops gathered in specie or as to the rights of a purchaser holding under a canceled contract. Of this nature are the cases of Johnston v. Fish, 105 Cal. 420 (38 Pac. 979, 45 Am. St. Rep. 53); Stockwell v. Phelps, 34 N. Y. 366 (90 Am. Dec. 710); Brothers v. Hurdle, 32 N. C. 490 (51 Am. Dec. 400); Churchill v. Ackerman, 22 Wash. 227 (60 Pac. 407), which are all quoted in the last case cited, as follows:

“That the title to crops follows actual possession, and not a right to possession merely, is well established; and that when a person in adverse possession severs crops before recovery, the title thereto is in the former, is equally well established. In Stockwell v. Phelps, 34 N. Y. 363 (90 Am. Dec. 710), it was held that when a party in possession of land, claiming adversely to all others, sells to a third party the hay cut therefrom during such occupancy, the legal title thereto passes to his vendee, as against the party claiming title to said premises, although not in possession: See, also, Brothers v. Hurdle, 32 N. C. 490 (51 Am. Dec. 400); Dollar v. Roddenbery, 97 Ga. 148 (25 S. E. 410); Hinton v. Walston, 115 N. C. 7 (20 S. E. 164). In Page v. Fowler, 39 Cal. 412 (2 Am. Rep. 462), it is held that, while the owner might recover for use and occupation, he could in no case be held to be the owner of the crops grown and actually harvested on the land by the defendant while in possession. The facts in this case are in principle identical, with the facts in the case at bar. In that case it is said: ‘It is undoubtedly true that at common law a person who had been ousted from land might, after a recovery and re-entry, maintain his action of trespass for the mesne profits and for waste, for the reason that, after reentry, the law supposes he has always been seised, and the acts of the defendant were a continuous trespass upon the rightful possession of the plaintiff; hut no ease has been cited in which this principle has been held to make the owner of the land out of possession under such circumstances the owner of the crops grown and actually harvested by the defendant. The very fact that he may recover the rents and profits of the land shows that he cannot recover the crops; for, as was well said in the case of Stockwell v. Phelps, 34 N. Y. 363 (90 Am. Dec. 710), the owner of the land, in such cases, does not recover the value of the crops raised and harvested, but the value of the use and occupation of the land, and the annual crops of grain and grass, which contain both the value of the use of the land and the labor of the farmer, do not, under such circumstances, belong to the owner of the land. It would be an oppressive rule to require everyone who, after years of litigation, perhaps, may be found to have a bad title, to pay the gross value of all the crops he has raised. To the same effect is Johnston v. Fish, 105 Cal. 420 (38 Pac. 979, 45 Am. St. Rep. 53), where the rule is laid down that the doctrine applies to volunteer crops, as well as to crops seeded the same year in which they were gathered.

“In the case at bar the wheat harvested was from a volunteer crop, the original crops having been planted by the defendant. The testimony shows that the first crop was a partial failure, and that it was thought best to allow the second crop to volunteer; but the testimony is undisputed that the volunteer crop was taken care of by the defendant, that it was kept fenced and protected from the ravages of stock, that some $35 worth of poison was purchased and distributed in the ground on which this wheat grew for the purpose of protecting it from destruction by squirrels which infested that part of the country. So that we think that the fact that it is a volunteer crop does not distinguish it in principle from any of the cases cited, and is, as is shown, in that respect identical with the case last above quoted. Quotation is made in this case from Brothers v. Hurdle, 32 N. C. 490 (51 Am. Dec. 400), where the court said: ‘But when one who is in the adverse possession gathers a crop in the course of husbandry, or severs a tree or other thing from the land, the thing severed becomes a chattel; but it does not become the property of the owner of the land, for his title is divested. He is out of possession, and has no right to the immediate possession of the thing; nor can he bring any action until he regains possession. The owner of the land cannot sue for the thing severed in trover or detinue as a chattel, for it is not his chattel. It did not become so at the time it was severed, and the title to it as a chattel cannot pass to him after-wards, when he regains the possession, by force of the jus postliminii. In Faulcon v. Johnston, 102 N. C. 104 (9 S. E. 395, 11 Am. St. Rep. 737), it is held that the owner of land held adversely is not the owner of the crops, and cannot recover them, or their value,from one who has received and converted them, — citing Branch v. Morrison, 51 N. C. 16; Ray v. Gardner, 82 N. C. 454. If there are any cases sustaining the contrary doctrine, they have not been suggested. We think, for many reasons, that the rule announced is a just one, and therefore adopt it.”

In Aultman & Taylor Co. v. O’Dowd, 73 Minn. 58 (75 N. W. 756, 72 Am. St. Rep. 603), it is stated:

“The fact that the owner of the premises may recover the rents and profits of the land for its being withheld, precludes the idea of his right to recover the crops. It is the value and use of the land which the owner recovers, and not the fruits of the land. A contrary rule would give the owner the value of the use of the land, and the value of the labor of the farmer in producing the crop, for the crop contains the value of both.”

If such a rule is applied where the person who severs the crop from the land is essentially a trespasser, the rule should apply with particular force to the condition where a man enters under right and remains under right until' after the severance of the crop from the realty. It would he a strange rule of law that would grant greater rights to the product of his labor to a person who is a trespasser than are granted to a person in exercise of the undoubted rights granted by the statutes covering sales of real property upon execution. It is a settled principle laid down by this court that the right of redemption is merely statutory in allowing the owner of the property sold at sheriff’s sale to redeem upon the paying of the amount the property was sold for with interest. We have the reciprocal provision of the statute requiring such purchaser at sheriff’s sale to account for the rents, issues and profits received from any tenant in possession of the property on unexpired lease, and by the decisions in the Cartwright v. Savage, Fields v. Crowley, and Reichert v. Sooy-Smith cases, a clear obligation upon the part of such purchaser to account for the rents, issues and profits of such realty after he goes into possession himself. The granting of such right in itself will bar the right of the redemptioner to recover in specie the crops already harvested by the purchaser in possession. It has been held that the words ‘ ‘ rents, issues and profits” apply only to net profits and such as are of the nature of rent: 7 Words & Phrases, 6090.

It is stated in Bruce v. Thompson, 26 Vt. 741 :

“The words ‘rents, issues and profits’ # * cannot be construed to include annual products of the wife’s land. The words have no very marked fitness to express the yearly products which are the joint results of labor and the use of the land. * # Rents, issues and profits apply only to net profits, and such as are of the nature of rent.”

In Re Vedders’ Will, 15 N. Y. Supp. 798, it is said:

“Rents and profits of real estate mean the sum annually yielded by the same.”

4. It would seem from a consideration of the above that the redemptioner has an undoubted right to secure an accounting from the purchaser at the execution sale who goes into possession of the ■ rents, issues and prefits of the real estate so possessed by him before redemption, but that the very right to secure such an accounting of rents, issues and profits excludes the idea that the redemptioner may, upon recovering the possession and title of the real property in question, also by such act transfer the title to personalty created by the purchaser in possession to himself. Such a rule would not be just or equitable. The remedy possessed by the redemptioner to secure an accounting of the rents, issues and profits now provided is ample and the holding that the crops severed are personalty and belong to the purchaser in possession, is not in conflict with the cases heretofore decided by this, court. It frequently happens that the labor expended in harvesting a crop forms the greater portion of its value when so harvested, and the writer hereof remembers very distinctly clearing two acres of land for the first year’s crop and sowing thereon four bushels of peas and after great labor threshing therefrom two and one-half bushels. We hold, therefore, that the title to the hay after it was severed from the realty was in the plaintiffs, in this suit.

It remains, then, to be determined whether plaintiffs are entitled to the relief sought and in the form of a suit in equity. An examination of the complaint shows that the requested relief in equity consists first, of a request for an injunction preventing the defendants from interfering with plaintiffs or using the hay and allowing the plaintiffs to go upon the land and remove the hay for their own use. Second, that the Circuit Court in Harney County will not meet until in April, and that no plain, speedy or adequate remedy would be afforded in law which would secure to them the possession of the hay in time to prevent their cattle from starving during the winter of 1917-18, and, third, for an accounting between plaintiffs and defendants as to the rents, issues and profits of the land retained by defendants. It is alleged further that defendants Howell and Jones are insolvent. It will be noted that the order sustaining the demurrer and the decree thereon was handed down on April 5th, and entered on April 9, 1918. This would seem to bring the case within the rule laid down in Weigand v. West, 73 Or. 249 (144 Pac. 481). The main" ground for the interposition of equity set forth in the complaint is, that the hay is absolutely necessary for the feeding of plaintiffs’ cattle during the winter of 1917-18. The decision appealed from was rendered in the spring of 1918. Justice Burnett, in the last-mentioned case says:

“The question is whether the plaintiff has properly conceived his remedy in the present case. Giving the allegations of the complaint their full value, yet it appears that the trespass complained of happened before the commencement of the suit. Injunction is a preventive remedy, and is designed in general to stay the lawless hand before it strikes the blow. We do not, however, impound the water for the wheel after it has run by the mill. It is vain to lock the door of the stable after the horse has been stolen, and it is equally useless to insure a house after it is burned. The trespass having been accomplished before the commencement of the suit, it would be of no utility for a court to enjoin what has already passed.”

5, 6. In the present case the retention of the case in equity is almost a moot question, as at the time of the decision on the demurrers appealed from on April 5, 1918, the damage — if any — bad been done, tbe winter bad passed, and tbe relief by injunction would be practically of no avail, but passing this point it would seem none of tbe allegations of plaintiffs’ complaint bring the suit within tbe grounds of equitable jurisdiction. It is held as a general principle that a suit in equity for tbe recovery of personal property does not lie ordinarily: Parsons v. Hartman, 25 Or. 547 (37 Pac. 61, 42 Am. St. Rep. 803, 30 L. R. A. 98); Moore v. Halliday, 43 Or. 243 (72 Pac. 801, 99 Am. St. Rep. 724); Wolfer v. Hurst, 50 Or. 218 (91 Pac. 366). Tbe property must be of some unique value, for instance a personal memento or relic or heirloom that cannot be replaced. Wherever tbe property is of such a nature as can be compensated in damages tbe law affords an adequate remedy. Wild hay is certainly an ordinary commercial article, and tbe allegations of the complaint do not take it out of that class, nor show any reason why tbe damages for unlawful seizure thereof cannot be compensated for in a proper action. Tbe contention that tbe court does not meet until April, therefore equity relief should be invoked, does not give equity jurisdiction as tbe action of injunction is no more speedy than that of replevin; moreover a temporary injunction should be used only to maintain tbe status quo, to prevent wrongdoing or interference with tbe possession. It is ordinarily not tbe proper use of tbe remedy of a temporary injunction to, by means thereof 1, take property from the possession of another and cause tbe destruction or use of tbe same before tbe rights thereto can be adjudicated.

7, 8. As to tbe relief sought by way of an accounting it is clear from tbe case of Reichert v. Sooy-Smith, 85 Or. 251 (165 Pac. 1174), that plaintiffs could not possibly recover any money in an accounting from the defendants. The only decree that could be entered in such an accounting’ would be in favor of the defendants. Standing alone the request for an accounting on the part of the plaintiffs will not be sufficient to take the case into equity on the ground solely that the plaintiffs seeking the relief may owe some money to defendants. There is no allegation herein as to complexity of accounts between the parties, or in the nature of a discovery, or that a fiduciary relationship exists between the parties, nor any allegation of fraud: 1 R. C. Law, 223, 224; 1 Corpus Juris, 633, 634. It is true an accounting may be had as incidental to other equitable relief but in this case other relief sought will not bring this case into equity. A plain, speedy and adequate remedy at law by way of replevin of the hay, or by way of damages for the conversion thereof by the defendants, existed. It does not seem that an action for an accounting can be brought by a party who, from the very nature of his case, cannot have any recovery against the defendants, and the defendants be thus forced to come into court and obtain in effect a judgment against him. Such defendants may not at that time be ready to make any claim against the person so seeking an accounting. They have a right to waive their claim if they so wish or to take their time within the statute of limitations to bring either an action or suit. It would certainly be a novel doctrine to hold that if a person suspects that some other person may have a legal claim against him, either in contract or tort, that he could hale the party into court and require him to set up or prove whatever claim he might have. Stripped of its nonessentials it amounts to a person bringing a cause into court in order that some real or fancied claim against him may be adjudicated in spite of the wishes of the other party. Of course in cases where the plaintiffs seek some affirmative relief by way of quieting title to realty or the settling of a fiduciary relationship, an entirely different case presents itself.

9. It is alleged by plaintiffs that two of the defendants are insolvent but no allegation is made as to the insolvency of the other party. It has been held, however, in this jurisdiction in Parker v. Furlong, 37 Or. 248 (62 Pac. 490), that insolvency alone is not a ground for equitable relief.

It is strongly contended by plaintiffs that as to the 150 tons of hay not cut upon the land sold at sheriff’s sale the complaint states a good cause of suit. Under our holding, as above set out, there is no difference between the ownership of plaintiffs in the hay cut on the land sold on sheriff’s sale and that cut elsewhere. It all belongs to the plaintiffs. The title to the same could have been tried out in a replevin action, or an action at law could have been brought for its conversion by defendants, and a plain, speedy and adequate remedy is afforded at law to the plaintiffs.

Affirmed. Rehearing Denied.

Harris, J., absent.