Young, J.
This is an action in claim and delivery brought by a purchaser of real estate at foreclosure sale to recover the'possession of a quantity of wheat grown upon such land during the redemption period. The case was tried to the court without a jury, and findings of fact were made by the trial judge upon all material points. From the facts found the trial court concluded, as matter of law, that the plaintiff was not entitled to recover, and a judgment was entered dismissing the action. Plaintiff appeals from the judgment.
The appellant does not attack any of the findings of fact, but accepts them as correct. His only assignment of error is aimed at the trial court’s conclusion that such facts do not warrant a recovery [226]*226by plaintiff. To make clear this point, upon which we must rule, a recital of a few facts is necessary: One Ditton was the owner of the land in question. On April xi, 1898, he entered into a written contract with one Filson, wherein the latter agreed to farm and cultivate said land at his own expense for the farming season of 1898. This contract was quite similar in its provisions to those commonly used when lands are operated upon shares. Ditton, the owner of the land, was to have one half of all grain raised, to be taken from the machine, as his share. Filson, who produced the grain, was to have the other half of it as his share, but not until all of his various covenants and agreements in the contract had been kept and performed. Until that time the title and possession of all the grain grown were to be in Ditton. The land was farmed by Filson under this contract during the year 1898. A division of the grain was made, and Filson received his share. The share belonging to the other party to the contract was set apart, and is the wheat here involved. On April 19, 1898, Ditton executed and delivered to Thomas S. Edison, one of the defendants herein, a quitclaim deed to said land, which deed was in effect a mortgage to secure an indebtedness due the latter. On April 23, 1898, the land was sold by the sheriff of Nelson county under a foreclosure of a mortgage tliereon executed by Ditton in 1894 to H. L. Whithed, the plaintiff in this action, to whom the usual sheriff’s certificate of sale was executed and delivered. No redemption from this sale has been made. At the time of the threshing and division of the grain Edison took possession of 1,012 bushels of wheat, which was the portion set over as rent, and caused the same to be conveyed to the defendant’s elevator, where it was placed in a special bin, in his (Edison’s) name. This is the grain in controversy, and was of the value of 40 cents per bushel at the commencement of this action. Possession of said grain was demanded by plaintiff prior to the commencement of this action, and refused.
It is appellant’s contention that by virtue of his purchase of the land at the foreclosure sale on April 23, 1898, he came into all of the rights which either Ditton or Edison had in the contract under which the land was farmed during the redemption period, and is entitled to assert the same title and right of possession to the grain in question which they or either of them might have asserted thereunder had there been no foreclosure sale, and by the same remedies. This contention is based upon section 5349, Rev. Codes, which, in part, reads, as follows: “The purchaser from the time of the sale until a redemption, and 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.” This same statute has been in force in California for many years, during which it has been repeatedly passed upon by the Supreme Court of that state. In Reynolds v. Lathrop, 7 Cal. 43, it was held that the effect of the sale was equivalent to an assignment of the lease, and that the plaintiff in [227]*227that case, who was the purchaser, “could sue for the rent, as often as it fell due, under the terms of the lease existing when he became purchaser.” This case was followed in McDevitt v. Sullivan, 8 Cal. 593, which went further, and held that when the tenant had paid the rent for the redemption period to his landlord in advance, the purchaser could require him to pay it over again. In Harris v. Reynolds, 13 Cal. 515, the words “tenant in possession,” as used in the statute, were construed and held to include the owner who is in possession, as well as others who have possession under any kind of title. The court said: “The phrase ‘the tenant in possession’ is a generic term intended to designate the class of persons from whom the purchaser was to receive the rents. The language is not, when a tenant of the debtor is in possession, the tenant shall pay the purchaser, or that the debtor when in possession shall not; but the phraseology designed, evidently, to fix a general right applying to all cases of tenancy, for none are excluded. * * * The definition of ‘tenant in possession’ embraces within the natural and usual meaning of the words a judgment debtor as well as his lessee. The owner in fee in possession is no less, in legal contemplation, a tenant, than the man who occupies under him. The definition of ‘tenant’ is ‘one who holds or póssésses lands or tenements by any kind of title, either in fee, for life, years, or at will.’ ” So, too, in Hill v. Taylor, 22 Cal. 191, it was held that the purchaser of a mine at a mortgage foreclosure sale was entitled to the profits of the mine, which the mortgagor was working himself. .That court further said, in discussing relative rights of the purchaser and original owner after sale, in Page v. Rogers, 31 Cal. 294: “The purchaser acquires an equitable estate in the lands, conditional, it is true, but which may become absolute by simple lapse of time, without the performance of the only condition which can defeat the purchase. The legal title remains in the judgment debtor, with the further right in him, and his creditors having subsequent liens, to defeat the operation of a sale already made during a period of six months, after which the equitable estate acquired by the purchaser becomes absolute and indefeasible, and the mere dry, naked legal title remains in the judgment debtor, with authority in the sheriff to devest it by executing a deed to the purchaser. Even during the period which elapses between the sale and expiration of the time for redemption the statute regards the purchaser as the owner in equity, and gives him the rents and profits, or the value of the use and occupation. * * * In short, it gives him the entire beneficial interest in the property, except the actual possession.” Later, in Walker v. McCusker, 71 Cal. 594, 12 Pac. Rep. 723, it was held that “when real property is sold at a foreclosure sale a party to the foreclosure suit, who thereafter remains in possession under a claim of title, which is subject to the mortgage, is a tenant in possession, within the meaning of section 707 of the Code of Civil Procedure, and liable as such to account to the purchaser, in assumpsit, for the value of the use and occupation.” See, also, Kline v. Chase, [228]*22817 Cal. 596; Knight v. Truett, 18 Cal. 113; Walls v. Walker, 37 Cal. 424; Webster v. Cook, 38 Cal. 423.
The same question which is now presented by the appellant was before this court in Clement v. Shipley, 2 N. D. 430, 51 N. W. Rep. 414, in a form not materially different.
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Young, J.
This is an action in claim and delivery brought by a purchaser of real estate at foreclosure sale to recover the'possession of a quantity of wheat grown upon such land during the redemption period. The case was tried to the court without a jury, and findings of fact were made by the trial judge upon all material points. From the facts found the trial court concluded, as matter of law, that the plaintiff was not entitled to recover, and a judgment was entered dismissing the action. Plaintiff appeals from the judgment.
The appellant does not attack any of the findings of fact, but accepts them as correct. His only assignment of error is aimed at the trial court’s conclusion that such facts do not warrant a recovery [226]*226by plaintiff. To make clear this point, upon which we must rule, a recital of a few facts is necessary: One Ditton was the owner of the land in question. On April xi, 1898, he entered into a written contract with one Filson, wherein the latter agreed to farm and cultivate said land at his own expense for the farming season of 1898. This contract was quite similar in its provisions to those commonly used when lands are operated upon shares. Ditton, the owner of the land, was to have one half of all grain raised, to be taken from the machine, as his share. Filson, who produced the grain, was to have the other half of it as his share, but not until all of his various covenants and agreements in the contract had been kept and performed. Until that time the title and possession of all the grain grown were to be in Ditton. The land was farmed by Filson under this contract during the year 1898. A division of the grain was made, and Filson received his share. The share belonging to the other party to the contract was set apart, and is the wheat here involved. On April 19, 1898, Ditton executed and delivered to Thomas S. Edison, one of the defendants herein, a quitclaim deed to said land, which deed was in effect a mortgage to secure an indebtedness due the latter. On April 23, 1898, the land was sold by the sheriff of Nelson county under a foreclosure of a mortgage tliereon executed by Ditton in 1894 to H. L. Whithed, the plaintiff in this action, to whom the usual sheriff’s certificate of sale was executed and delivered. No redemption from this sale has been made. At the time of the threshing and division of the grain Edison took possession of 1,012 bushels of wheat, which was the portion set over as rent, and caused the same to be conveyed to the defendant’s elevator, where it was placed in a special bin, in his (Edison’s) name. This is the grain in controversy, and was of the value of 40 cents per bushel at the commencement of this action. Possession of said grain was demanded by plaintiff prior to the commencement of this action, and refused.
It is appellant’s contention that by virtue of his purchase of the land at the foreclosure sale on April 23, 1898, he came into all of the rights which either Ditton or Edison had in the contract under which the land was farmed during the redemption period, and is entitled to assert the same title and right of possession to the grain in question which they or either of them might have asserted thereunder had there been no foreclosure sale, and by the same remedies. This contention is based upon section 5349, Rev. Codes, which, in part, reads, as follows: “The purchaser from the time of the sale until a redemption, and 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.” This same statute has been in force in California for many years, during which it has been repeatedly passed upon by the Supreme Court of that state. In Reynolds v. Lathrop, 7 Cal. 43, it was held that the effect of the sale was equivalent to an assignment of the lease, and that the plaintiff in [227]*227that case, who was the purchaser, “could sue for the rent, as often as it fell due, under the terms of the lease existing when he became purchaser.” This case was followed in McDevitt v. Sullivan, 8 Cal. 593, which went further, and held that when the tenant had paid the rent for the redemption period to his landlord in advance, the purchaser could require him to pay it over again. In Harris v. Reynolds, 13 Cal. 515, the words “tenant in possession,” as used in the statute, were construed and held to include the owner who is in possession, as well as others who have possession under any kind of title. The court said: “The phrase ‘the tenant in possession’ is a generic term intended to designate the class of persons from whom the purchaser was to receive the rents. The language is not, when a tenant of the debtor is in possession, the tenant shall pay the purchaser, or that the debtor when in possession shall not; but the phraseology designed, evidently, to fix a general right applying to all cases of tenancy, for none are excluded. * * * The definition of ‘tenant in possession’ embraces within the natural and usual meaning of the words a judgment debtor as well as his lessee. The owner in fee in possession is no less, in legal contemplation, a tenant, than the man who occupies under him. The definition of ‘tenant’ is ‘one who holds or póssésses lands or tenements by any kind of title, either in fee, for life, years, or at will.’ ” So, too, in Hill v. Taylor, 22 Cal. 191, it was held that the purchaser of a mine at a mortgage foreclosure sale was entitled to the profits of the mine, which the mortgagor was working himself. .That court further said, in discussing relative rights of the purchaser and original owner after sale, in Page v. Rogers, 31 Cal. 294: “The purchaser acquires an equitable estate in the lands, conditional, it is true, but which may become absolute by simple lapse of time, without the performance of the only condition which can defeat the purchase. The legal title remains in the judgment debtor, with the further right in him, and his creditors having subsequent liens, to defeat the operation of a sale already made during a period of six months, after which the equitable estate acquired by the purchaser becomes absolute and indefeasible, and the mere dry, naked legal title remains in the judgment debtor, with authority in the sheriff to devest it by executing a deed to the purchaser. Even during the period which elapses between the sale and expiration of the time for redemption the statute regards the purchaser as the owner in equity, and gives him the rents and profits, or the value of the use and occupation. * * * In short, it gives him the entire beneficial interest in the property, except the actual possession.” Later, in Walker v. McCusker, 71 Cal. 594, 12 Pac. Rep. 723, it was held that “when real property is sold at a foreclosure sale a party to the foreclosure suit, who thereafter remains in possession under a claim of title, which is subject to the mortgage, is a tenant in possession, within the meaning of section 707 of the Code of Civil Procedure, and liable as such to account to the purchaser, in assumpsit, for the value of the use and occupation.” See, also, Kline v. Chase, [228]*22817 Cal. 596; Knight v. Truett, 18 Cal. 113; Walls v. Walker, 37 Cal. 424; Webster v. Cook, 38 Cal. 423.
The same question which is now presented by the appellant was before this court in Clement v. Shipley, 2 N. D. 430, 51 N. W. Rep. 414, in a form not materially different. In that case the plaintiff, as a purchaser at a foreclosure sale, was seeking to collect the rents due from the lessee, during the period of redemption, to the lessor, according to the terms of the contract existing between the parties ifc the lease. His right to recover was upheld, following the California cases to which we have referred. The recovery in that case was money, and was the sum fixed by the contract between the lessor and lessee as stipulated compensation for the use of the property there involved. In the case at bar the compensation agreed upon for the use of the land is not money, but property, and it is the particular property involved in this suit. We do not think that this changes the principle, or militates in any way against the plaintiff’s right to recover. It is true, the plaintiff does not sue to recover a money judgment for “the value of the use and occupation” for the year of redemption, and very properly does not; for, if he had brought that form of action against the parties who occupied the land, he would have been confronted by the contract between Ditton and Filson under which the farm was operated, which provides for the payment for its use in property, and in a particular manner. That contract, in the absence of fraud or collusion (and there was none) is binding upon plaintiff. He can demand no more from the tenant than could Ditton. Neither could Filson, the tenant, be required to pay for the use of the land any more or in different manner than he had stipulated to do. Further, the statutory right to' rent during the redemption period does not limit the purchaser to the recovery of money rent. The word “rent” is comprehensive, and embraces “the compensation, either in money, provisions, chattels, or labor received by the owner of soil from the occupant thereof.” 3 Kent, Comm. 460; 2 Steph. Comm. 23; Jac. & G. Landl. & Ten. § 38. It is not necessary to technically classify the contract under which the land in question was farmed during the period of redemption. It is sufficient for the purposes of this case that it is the contract which fixed the compensation of the owner of the land for its use, and that the compensation so fixed is the wheat here involved. Under this contract the owner of the land could at all times maintain replevin for his share, and until division was made for the entire crop. See Angell v. Egger, 6 N. D. 391, 71 N. W. Rep. 547. We therefore hold that the plaintiff by his purchase at the foreclosure sale was substituted to the rights which the owner of the land had in the contract under which it was operated during the period of redemption, and it is not important whether it was Ditton or Edison. That contract gave the title to and right of possession of the particular wheat here involved to Ditton. To this plaintiff succeeded by his purchase at the foreclosure sale. Having then the same rights in the contract which either Ditton or [229]*229Edison had, it would seem unnecessary to add that he is entitled to the same remedies which they might have had to protect and enforce their interests in and under this contract. Those, of course, would include the right to recover the possession of the property in the manner now being pursued by the plaintiff. Our conclusion is that the facts found entitle the plaintiff to a judgment against the defendants for a return of the wheat in question, in quantity 1,012 bushels, or for its value, which is found to be $404.80 on October x, 1898, in case a delivery thereof cannot be had. The judgment of the District Court is reversed, and that court is directed to enter judgment for the plaintiff upon its findings of fact.