Stayton, Associate Justice.—
The deed in trust made by Lewis. Moore to secure the notes executed by him to Reed & Smith, having been duly recorded, it must be held that A. J. Gill bought the interest of Lewis Moore in the crop upon the land on the 1st of August, 1881, with notice of whatever right the appellant, by virtue of the transfer of the notes, which carried with them as an incident the security evidenced by the trust deed, had in the crops then standing ungathered upon the land.
There might be some difficulty in determining the true relation which existed between Lewis Moore and J. A. Gill, under the agreement of date December 24, 1877; but it is treated by appellant’s counsel as a partnership, in which, for their mutual benefit, the land was cultivated by the l^ter, the material for that purpose being in part furnished by each, the net proceeds to be equally divided between them. This is probably the true relationship of the parties, rather than that they were landlord- and tenant, and we will so consider them in disposing of the case. It does not appear when the notes to Reed & Smith matured, but it is found that they were due and unpaid" on the 8th of September, 1881, at which time the substituted trustee soil the land, and thereby the appellant became the owner thereof.
The question for our decision then is, is the purchaser of mortgaged lands, as against the mortgagor or any pers^TclaiSnSSer" him by a purchase of the crops, entitled to such cm ps -a-s were . stand-ing unfathered uponthelandht the time ofJfigjarchaseJ^ A. J. Gill does not necessarily stahdlhThe same relafcioii to this question as would Lewis Moore were he the claimant.
That in England and in many states of this Hnion, the mortgagee is deemed the holder of the legal title, cannot be questioned; and that upon such title he may maintain ejectment against the mortgagor. Where such is the rule, many decisions are to be found [634]*634in which it is held that neither the mortgagor, nor a tenant under him claiming through a lease made after the execution of the mortgage. is entitled to car£y_as«iy the crops growing upon the mortgaged land at the time of foreclosure or actual entry by the mortgagee; Íand this upon the theory that, from the date of the mortgage, the ¿mortgagor is but a tenant at sufferance; and that a lease made by him, b e El g~q n aut h o n zédT wb rhs~a TI i ssei z i n. "
In the case of Lane v. King, 8 Wend., 585, which is a leading case in America, the rule and reasons therefor are thus illustrated: “In Keech v. Hall, Doug., 21, already referred to, the mortgagee brought an action of eiectmenhagainst a tenant, who claimed under a lease from the mortgagor, given after the mortgage, without the privity of the mortgagee. Lord Mansfield, in delivering the opinion of the court, said: ‘On full consideration, we are all clearly of opinion that there is no inference of fraud or concert against the mori?gagee to prevent him from considering the lessee of the mortgagor as a wrong-doer. The question turns upon the agreement between the mortgagor and mortgagee; when the mortgagor is left in possession the true inference to be drawn is an agreement that he shall possess the premises, at will, in the strictest sense, and therefore no notice is ever given to quit; and he is not even. entitled to reap the crop as other tenants at will are, because all are liable to the debt, on payment of which the mortgagee’s title ceases. The mortgagor has no power, express or implied, to let. leases not subject to^every eircumsta/nce of the mortgage; the tenant stancls^mT^ylmthesi^luiMo^i of the mortgagor.' This court, in McKercher v. Hanley, 16 Johns., 292, also held that the relation subsisting between the mortgagor and mortgagee did not imply a right on the part of the mortgagor to lease. The mortgagor, therefore, in giving a lease becomes as to the mortgagee a disseizor. . . . The mortgagee undoubtedly, as against the mortgagor and his grantees, has the paramount right. Mr. Powell considers the right of mortgagee to emblements, as against the lessee of the mortgagor, as necessarily resulting from the doctrine established by Lord Mansfield in Keech v. Hall, Doug., 21, and that a mortgagor has no right to lease; he observes that he -can see no ground on which the, case of such lessee^as to emblements, can be distinguished from any^ather tenant-jmden.a-iQj?¿¿nM.9 title; ' for if he beTronsídeféct"A wrong-doer as to his occupation of the premises, he cannot be considered in a different character as to •emblements, nor can there be any ground to imply 'a consent to cultivate the property, when no implication is admitted to a consent to occupy it.”
[635]*635In the case of Keech v. Hall, 1 Doug., 23, in reply to a suggestion that the tenant of a mortgagor was entitled to emblements, Lord Mansfield said: “I give no opinion upon that point; but there may be a distinction, for the mortgagor may be considered as receiving the rents in order to pay the interest by an implied authority from the mortgagee, till he determine his will. As to the lessee’s right to make the crop which he may have sown previous to the determination of the will of the mortgagee, that point does not arise in this case, the ejectment being for a warehouse; but" ■however that may be, it would be no bar to the mortgagee’s recovering in ejectment. It would only give the lessee a right of ingress/^ ■and egress to take the crop; as to which, with regard to tenants aw will, the text of Littleton is clear.”
In this state it has been held, from an early day, that a mortgage is but a security for a debt; that. the title to property mortgaged remains in the mortgagor, and with it the right of possession, which is one of the ordinary incidents-of titíe. Duty v. Graham, 12 Tex., 427; Wright v. Henderson, 12 Tex., 44; Wootton v. Wheeler, 22 Tex., 338.
Such being the legal effect of a mortgage in this state, it will be readily seen that the foundation upon which the rights of mortgagees is based in England and in some of the states wholly fails: ■
1st. There the paramount title is held to be in the mortgagee; here the paramount title remains in the mortgagor, and no estate passes to the mortgagee unless through foreclosure.
2d. There the right to the immediate possession of the mortgaged property vests in the mortgagee, with the consequent right to •appropriate the fruits and revenues without liability to account, unless called upon to do so in a proceeding to enforce the equity of redemption; here no right to the possession, nor to the fruits and revenues so long as the mortgage stands unforeclosed, unless under ¡some proceeding peculiarly equitable.
3d. There the mortgagor, under the conflict of authority, is held "to be either a tenant at sufferance or a tenant at will, with no power to do aught else than, under the strict rules of the common law, a tenant with the feeblest tenure may do, a lease by him operating as ¡a disseizin of the mortgagee, and making himself and his lessee tortfeasors; here he is the owner of the fee, if such be his estate in the land which he mortgages, recognizing no landlord, neither a tenant at will nor a tenant at sufferance, in any sense in which these terms can' be legitimately applied — for the owner cannot be, an the nature of things, the tenant of any one; he has power to [636]
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Stayton, Associate Justice.—
The deed in trust made by Lewis. Moore to secure the notes executed by him to Reed & Smith, having been duly recorded, it must be held that A. J. Gill bought the interest of Lewis Moore in the crop upon the land on the 1st of August, 1881, with notice of whatever right the appellant, by virtue of the transfer of the notes, which carried with them as an incident the security evidenced by the trust deed, had in the crops then standing ungathered upon the land.
There might be some difficulty in determining the true relation which existed between Lewis Moore and J. A. Gill, under the agreement of date December 24, 1877; but it is treated by appellant’s counsel as a partnership, in which, for their mutual benefit, the land was cultivated by the l^ter, the material for that purpose being in part furnished by each, the net proceeds to be equally divided between them. This is probably the true relationship of the parties, rather than that they were landlord- and tenant, and we will so consider them in disposing of the case. It does not appear when the notes to Reed & Smith matured, but it is found that they were due and unpaid" on the 8th of September, 1881, at which time the substituted trustee soil the land, and thereby the appellant became the owner thereof.
The question for our decision then is, is the purchaser of mortgaged lands, as against the mortgagor or any pers^TclaiSnSSer" him by a purchase of the crops, entitled to such cm ps -a-s were . stand-ing unfathered uponthelandht the time ofJfigjarchaseJ^ A. J. Gill does not necessarily stahdlhThe same relafcioii to this question as would Lewis Moore were he the claimant.
That in England and in many states of this Hnion, the mortgagee is deemed the holder of the legal title, cannot be questioned; and that upon such title he may maintain ejectment against the mortgagor. Where such is the rule, many decisions are to be found [634]*634in which it is held that neither the mortgagor, nor a tenant under him claiming through a lease made after the execution of the mortgage. is entitled to car£y_as«iy the crops growing upon the mortgaged land at the time of foreclosure or actual entry by the mortgagee; Íand this upon the theory that, from the date of the mortgage, the ¿mortgagor is but a tenant at sufferance; and that a lease made by him, b e El g~q n aut h o n zédT wb rhs~a TI i ssei z i n. "
In the case of Lane v. King, 8 Wend., 585, which is a leading case in America, the rule and reasons therefor are thus illustrated: “In Keech v. Hall, Doug., 21, already referred to, the mortgagee brought an action of eiectmenhagainst a tenant, who claimed under a lease from the mortgagor, given after the mortgage, without the privity of the mortgagee. Lord Mansfield, in delivering the opinion of the court, said: ‘On full consideration, we are all clearly of opinion that there is no inference of fraud or concert against the mori?gagee to prevent him from considering the lessee of the mortgagor as a wrong-doer. The question turns upon the agreement between the mortgagor and mortgagee; when the mortgagor is left in possession the true inference to be drawn is an agreement that he shall possess the premises, at will, in the strictest sense, and therefore no notice is ever given to quit; and he is not even. entitled to reap the crop as other tenants at will are, because all are liable to the debt, on payment of which the mortgagee’s title ceases. The mortgagor has no power, express or implied, to let. leases not subject to^every eircumsta/nce of the mortgage; the tenant stancls^mT^ylmthesi^luiMo^i of the mortgagor.' This court, in McKercher v. Hanley, 16 Johns., 292, also held that the relation subsisting between the mortgagor and mortgagee did not imply a right on the part of the mortgagor to lease. The mortgagor, therefore, in giving a lease becomes as to the mortgagee a disseizor. . . . The mortgagee undoubtedly, as against the mortgagor and his grantees, has the paramount right. Mr. Powell considers the right of mortgagee to emblements, as against the lessee of the mortgagor, as necessarily resulting from the doctrine established by Lord Mansfield in Keech v. Hall, Doug., 21, and that a mortgagor has no right to lease; he observes that he -can see no ground on which the, case of such lessee^as to emblements, can be distinguished from any^ather tenant-jmden.a-iQj?¿¿nM.9 title; ' for if he beTronsídeféct"A wrong-doer as to his occupation of the premises, he cannot be considered in a different character as to •emblements, nor can there be any ground to imply 'a consent to cultivate the property, when no implication is admitted to a consent to occupy it.”
[635]*635In the case of Keech v. Hall, 1 Doug., 23, in reply to a suggestion that the tenant of a mortgagor was entitled to emblements, Lord Mansfield said: “I give no opinion upon that point; but there may be a distinction, for the mortgagor may be considered as receiving the rents in order to pay the interest by an implied authority from the mortgagee, till he determine his will. As to the lessee’s right to make the crop which he may have sown previous to the determination of the will of the mortgagee, that point does not arise in this case, the ejectment being for a warehouse; but" ■however that may be, it would be no bar to the mortgagee’s recovering in ejectment. It would only give the lessee a right of ingress/^ ■and egress to take the crop; as to which, with regard to tenants aw will, the text of Littleton is clear.”
In this state it has been held, from an early day, that a mortgage is but a security for a debt; that. the title to property mortgaged remains in the mortgagor, and with it the right of possession, which is one of the ordinary incidents-of titíe. Duty v. Graham, 12 Tex., 427; Wright v. Henderson, 12 Tex., 44; Wootton v. Wheeler, 22 Tex., 338.
Such being the legal effect of a mortgage in this state, it will be readily seen that the foundation upon which the rights of mortgagees is based in England and in some of the states wholly fails: ■
1st. There the paramount title is held to be in the mortgagee; here the paramount title remains in the mortgagor, and no estate passes to the mortgagee unless through foreclosure.
2d. There the right to the immediate possession of the mortgaged property vests in the mortgagee, with the consequent right to •appropriate the fruits and revenues without liability to account, unless called upon to do so in a proceeding to enforce the equity of redemption; here no right to the possession, nor to the fruits and revenues so long as the mortgage stands unforeclosed, unless under ¡some proceeding peculiarly equitable.
3d. There the mortgagor, under the conflict of authority, is held "to be either a tenant at sufferance or a tenant at will, with no power to do aught else than, under the strict rules of the common law, a tenant with the feeblest tenure may do, a lease by him operating as ¡a disseizin of the mortgagee, and making himself and his lessee tortfeasors; here he is the owner of the fee, if such be his estate in the land which he mortgages, recognizing no landlord, neither a tenant at will nor a tenant at sufferance, in any sense in which these terms can' be legitimately applied — for the owner cannot be, an the nature of things, the tenant of any one; he has power to [636]*636lease without disloyalty to any one, his lease, if made after mortgage, subject, however, to be terminated in case of foreclosure before its expiration.
| The reason sometimes given, why a mortgagor should not be permitted to have the crops still standing upon the land at time of foreclosure, is, that he may obtain their value in accorj-nt upon bill te redeem; with us this reason can have no effect, for there is no such ¡thing in our practice as the right to redeem after foreclosure, which is made by sale.
The crops were planted, cultivated, and, in fact, must have been ^almost, if not quite, matured before the sale in September, and while / the wciramounttitleto the land upon jvTnolTlli^^rew was still in Moore, thn.vendor of. Gfil.L Moore solfLtjiem. The element of uncertainty, in so far as Grill was concerned, as to the continuance of title in his vendor, was very nearly as great as though he had held as tenant at will. The direction of the creditor to sell under the deed of trust and thereby place in himself or some other person the title to the land, was an act of will, without the exercise of which the paramount title to the land would continue in Moore; and even such exercise of the will would not necessarily affect that result; for Moore might be able to pay the indebtedness and thereby effectually prevent the divestiture of his title.
Where the mortgage is held to vest the title in the mortgagee, no-such elements of uncertainty exist; he may enter whenever he pleases.
The right of a person purchasing under a foreclosure of a mortgage. whereJhdsJi&ld. that the mortgage passes no estate, but is a. mere sennritgyo have thecrops’on'TlíéT.andauiameof foreclosure, is. questioned by MnWasEburñT* 1 Washburn on Eeal Property, 124. The reasons for the rule in question not existing here, it seems to us the rule must be held not to exist.
The deed of trust seems to evidence the fact that the parties contemplated, even if sale was made under it, that Moore and those-claiming under him should not at once surrender the land to the purchaser, but from the time of the sale should attorn to the purchaser, which carries with it-, by implication, at least an agreement that, from such time, Moore or his assigns should, as tenants, recognize the purchaser as the landlord and pay rent for the land from, the time of foreclosure.
By attornment is meant “the act óf recognition of a new landlord, implying an engagement to na.v ratrt-a-hdperform covenants to~~~hhn. The word is taken from tl law, where' it signifies the trárñP' [637]*637£er, by act of the lord and consent of the tenant, of the homage, service, fealty, etc., of the tenant to a new lord who had acquired the estate.” Abbott’s Law Dictionary.
It is true that the trust deed provides that the holding shall be as tenant at sufferance; but there can be no such thing as tenant by sufferance when the tenancy is the result of agreement such as is found in the trust deed, with reference to which the purchaser must be presumed- to have bought, and by which he is as much bound as though he had been a party to that instrument; and in the absence of something in the agreement evidencing that it was the intention of the parties, after the foreclosure, to have their rights to stand strictly upon the relation of landlord and tenant at sufferance, the parties should be held to have intended that such a tenancy should exist as is created by agreement; at least a tenancy at will, which would ■carry with it the right to the crops then nearly or quite matured, but ungatheréd at time of foreclosure/- "T " ~ ' : - 1
A tenancy by sufferance*^ is of such a nature as necessarily implies •an absence of any agreement between the owner and the tenant, and if express assent is given by the owner to such possession the tenancy is thereby instanter converted into a tenancy at will or from year to year, according to the circumstances.” Wood’s Landlord and Tenant, 15. It matters not what parties may designate such a tenancy.
This view of the case would be conclusive of the question, but there is another view of the case which is equally so.
A mortgage being simply a lien to secure the payment of a debt, it cannot be EekAto give to a mortgagee- or person purchasing^ under Hfany greater right to ungathered crops standing upon mortgaged lanflthamwould’apgrc^ tin don a lienacquired in any other maiihCTn3rioF°totEeTmíFl^^Sp=wfas planted, or the ^'gh* +-n plant it accrued, líogsett v. Ellis, 17 Mich., 363.
“ Crops, whether growing or standing in the field ready to be harvested, are, when produced by annual cultivation, no part of the realty. They are, therefore, liable to voluntary transfer as chattels. It is equally well settled that they may be seized and sold under execution.” Freeman on Executions, 113, and citations; Benjamin on Sales, 120. Such being the case, if there be nothing in the contract of the parties by which land is conveyed, nor in the circumstances attending the sale, evidencihg’TEA'intention of the parties. thaC^SpsInearlyMWqllte^mturedjhquld~pass withjancb sold^itjs difficult to^eeupon^vvlmAliinncipie it canbeheld thq,t próperW^nc5y^ersonMTirlts=Miafa^ersirould pass~by an instru- s [638]*638ment which upon its face purports only to convey land./ weigEToí aulEontyjüoWever, is toThee^^ttEaFsiBE'cfóps will pass by the sale of the land if they belong to the owner of the-land at time of sale. The application of this rule to sales made under mortgages, having only such effect's as mortgages here are held to have, upon crops produced -many years after the mortgage was given, need not further be considered. As, however, the crops, are separate and distinct in their nature from the land upon which they grow, the ownership of the one, even on mortgaged property, may be in one person, and the title to the other in another; and whenever crops growing or standing upon land covered bv a lien given by th^owner^oFTEeTandT’oFanqu^ law. ha,ve iri law or in. fact been severed in ownership, or actually severed from the land priOT uncler tdie lien, title thereto will not pass by fEe foredosure of the HenT"
«"^Zlnortgagoris entitled to sever in law or fact the crops which stand upon his land at any time prior to the destruction of his title by sale under the mortgage; this results from his ownership and consequent right to the use and profits of the land, and the mortgage is taken with knowledge of that fact, f In the case of Meyers’ Assignees v. White, 1 Rawle, 355, it apI peared that Meyers had executed a mortgage upon a tract of land, j subsequent to which he had a crop upon the land, which, with the I land, he assigned for the benefit of..his creditors. There was subse- \ quently a sale under a foreclosure of the mortgage, and the purchaser rl at that sale of the land claimed the crop, and it was held that the | Cifop„passed to thft-.assig.nees, arid not to the purchaser under the-I foreclosure of the mortgage: and this uppnTh e grouncfthat the crop, .1 by conveyance to the assignees, had 'Been severed. 'JL'he~court said t “ As there is no'3inerencé°ínthis respect between a judgment and a mortgage creditor, this case has been virtually decided in Hambacb v. Yeates, not yet reported, in which it was held that grain growing^inthe ground is personal property, and might, hefievied'upon"and □soTci as such, and that it did not pass by a sale to the sheriff’s vendee. * !Peter"Meyers, before juagmemfon the soire facias, had parted witRhis interest in the crop. At the time of the sale, all his right was-vested in his assignees for the benefit of his creditors.”
In the case of Stambaugh v. Yeates 2 Rawle, Yeates had recovered a judgment against Kyrm ana cmsedaTjferifaoias to-be levied upon his land and returned, after which the land was sown in grain, and another creditor caused a levy to be made upon the-grain under a judgment which he had obtained, and the grain was-[639]*639sold; afterwards the land was sold under a venditioni exponas, and it was held that the creditor who levied on the grain was entitled to-the proceeds.
These cases are approved and applied in Bear v. Bitzer, 16 Pa. St.,. 178 and in Groff v. Leyan, id 179.
All of these cases, as well as the case of Bittinger v. Baker, 29 Pa.. St., 70, wereponsidered in the case of Metzgar & Crugg v. Hershey, 90. Pa.,St... 218 and were reviewed and approved; and referring to the-case- of Bear v. Bitzer, the court say: “ The latter case rules that a purchaser of land at sheriff’s sale is- entitled to the growing grain. thereon, which had not been severed before the sale. There the owner of the 'Iand which' was sold owned the crop, and there had been no act of separation. The test is, whether there has, been„a severance of the growing grain; if so, it does not pass to him who-purchases the land subslkfimnt to the severance! if not, it goes with the land.” All these cases recognize a sale by the owner or by judicial process, if made before the sale of the land, as a severance.
The court of appeals of Maryland, in Purner v. Piercy, 40 Md., 223, in speaking of what constitutes severance, say: “There is nothing in the vegetable or fruit which is an interest in or concerning land, when severed from the soil, . . . whether grain, vegetables, or any kind of crop (fruetus industriales), the product of periodical planting and culture; they are alike mere chattels, and the severance may be in fact, as where they are cut and removed from the ground, or in law, as when they are growing, the owner in fee of the land, by a valid conveyance, sells them to another person, or when he sells the land, reserving them by an express provision.” To the same effect is the case of Titus v. Whitney, 1 Harrison, 85.
In Buckout v. Swift, 27 Cal., 443, it was held that a house which stood on mortgaged land, but which was severed from the land subsequently by a storm, did not pass by the sale under foreclosure.
There is no error in the judgment, and it is affirmed.
Aefiemed-
[Opinion delivered June 15, 1883.]