Tanous v. Tracy

212 N.W. 521, 55 N.D. 100, 1927 N.D. LEXIS 10

• Court: North Dakota Supreme Court
• Decided: February 14, 1927
• Status: Published

Opinion

Burke, J.

This is an action to recover for the alleged conversion of grain raised on section 27, township 131, range 96, in the county of Adams, North Dakota, alleged to be of the value of $2,642.28. ....

On the 15th day of December, 1920, M. O’Neil, the owner of the land, executed and delivered to C. A. Cosgrove a mortgage to secure the sum of $6,400. The. said land was sold at foreclosure sale on the 9th day of May, 1923, and certificate of sale duly issued .to .0, A. Cos- grove the mortgagee' and the1 purchaser at'said'sale, and on the'26th of January, 1924, C. A. Cosgrove sold and assigned the said certificate of sale to the defendant J. F. Tracy. On February 27th, 1924, O’Neil rented the west half of said section, and fifty acres on the east half to S. F. Larson who was to furnish, seed oats and flax and deliver, one fourth of the crop at the elevator, and O’Neil to furnish seed wheat for all the land sown to wheat, pay one half the thresh bill and twine and receive one half the crop of wheat as rent. The balance of the land was rented to George Ehlers for one fourth of the crop.

On the 23d day of September, 1924, O’Neil gave a bill of sale of all of his right, title, and interest in the crops to the plaintiffs, and they contend that they arc entitled to recover under the contracts between O’Neil and Larson, and O’Neil' and Ehlers.

The defendant justifies his faking of the grain under a sheriff’s deed, issued to him on his certificate of sale on the 11th day of July, 1924,'when all the crop Was then' growing on the land and immature. The defendant saw the tenants, Larson and Ehlers, in March, 1924, and told them that he had the certificate of sale, and if there- was no redemption before May 10, 1924, he would claim the landlord’s share of the crop, as the owner of the land.

The tenants put in and raised the- crop with the consent of both mortgagor and mortgagee, each claiming the landlord’s share which amounted to $2,642, and the only question in the case, is, who is entitled to the landlord’s share of the crop? ' The period of redemption expired on the 9th day of May, 1924, and sheriff’s deed was issued on -the 11th day of July, 1924. It is conceded "that at the time of the issuing of the deed, the crop was growing on'the land, and was immature. After the crop’was out the plaintiff ;servéd notice Of claim upon the tenants and sent a truck out at the time of threshing to haul in the landlord’s share. The defendant was there also, claiming the landlord’s share of the crop, and gave to tenant Ehlers a written statement by which he agreed to protect him against"loss, if he turned over the landlord’s share to the defendant. The' tenants refused' all "demands of the plaintiff and turned the landlord’s share of the' crop over to the defendant. The case1 w'a-si-tried to a jury'and verdict returned for the defendant, and plaintiff appeals. '

It is the contention of tlic plaintiff, that under the decision of this court in tbe case of Hendricks v. Stewart, 53 N. D. 513, 206 N. W. 790, it was necessary for tbe defendant to take actual possession óf tbe land after the deed was issued, and before the maturity of the crop, in order to entitle him to tbe landlord’s share. In tbe case of Hendricks v. Stewart, supra, tbe landlord’s share was not involved. That was an action brought against tbe tenants against whom the -mortgagee on acquiring title immediately proceeded to recover and protect bis rights. ■ ■ ■

■ There is no question of tbe rights of tenants in tbe case at bar. Tbe question here, is, who 'is entitled to tbe landlord’s share? And that depends upon the statute, defining tbe effect of a deed which completes tbe foreclosure sale. Section 8106, Comp. Laws 1913, provides that:

“Such deed shall vest in the grantee all tbe right, title and interest of tbe mortgagor in and to the property sold at tbe time tbe mortgage was executed, or which was subsequently acquired by him.”

Not only interest that the mortgagor bad at tbe time of tbe execution of tbe mortgage, but any interest which be might acquire subsequent to tbe execution of tbe mortgage, and before tbe execution of tbe deed. It divests tbe mortgagor of every and all interest, in, tbe land, including all tbe crops growing upon tbe land. It is well settled that growing crops are a part of tbe real estate. Hendricks v. Stewart, supra; 17 C. J. 381, § 6; Clark v. Strohbeen, 190 Iowa, 989, 13 A.L.R. 1419, 181 N. W. 430; John Hancock Mut. L. Ins. Co. v. Watson, 200 Ill. App. 315.

In tbe instant case the mortgagor knew that tbe period of redemption would expire on tbe 9th day of May, 1924. Before any crop was sown be knew that tbe defendant was tbe owner of tbe certificate of sale. He did not redeem nor attempt to redeem, and by operation of law tbe defendant became the owner of all of the mortgagor’s interest in tbe land, including tbe landlord’s share of tbe crop immediately upon tbe execution of tbe statutory deed.

There are some other questions arising over tbe admission of evidence, and requests for certain instructions which are without merit, for the reason, that under tbe conceded facts the defendant is entitled to judgment, and it is ordered that tbe judgment be affirmed.

Birdzell, Cb. I., and Burr, Nuessle, and Christianson, JJ., concur.