121 Cal. 595, Sac. 351, Clarke v. Cobb

Docket Nº:Sac. 351
Citation:121 Cal. 595, 54 P. 74
Opinion Judge:GAROUTTE, Judge
Party Name:CATHERINE CLARKE and J. E. CAIN, Executors, etc., Appellants, v. G. M. COBB, Defendant. E. C. LANGENOUR et al., Intervenors, Respondents
Attorney:B. F. Howard, for Appellants. N. A. Hawkins, and H. C. Watkins, for Respondents.
Judge Panel:JUDGES: In Bank. Garoutte, J. Van Fleet, J., McFarland, J., Temple, J., and Henshaw, J., concurred. Harrison, J., dissenting. HARRISON
Case Date:August 02, 1898
Court:Supreme Court of California
 
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Page 595

121 Cal. 595

54 P. 74

CATHERINE CLARKE and J. E. CAIN, Executors, etc., Appellants,

v.

G. M. COBB, Defendant. E. C. LANGENOUR et al., Intervenors, Respondents

Sac. No. 351

Supreme Court of California

August 2, 1898

APPEAL from a judgment of the Superior Court of Yolo County. W. H. Grant, Judge.

COUNSEL:

B. F. Howard, for Appellants.

N. A. Hawkins, and H. C. Watkins, for Respondents.

JUDGES: In Bank. Garoutte, J. Van Fleet, J., McFarland, J., Temple, J., and Henshaw, J., concurred. Harrison, J., dissenting.

OPINION

GAROUTTE, Judge

Page 596

[54 P. 75] W. J. Clarke and plaintiffs and appellants, executors of the estate of W. J. Clarke, deceased, respectively entered into contracts with one Cobb, whereby said Cobb agreed to farm and cultivate certain lands to grapes and grain for a term of years. For present purposes these contracts were the same, and it was provided therein that the lands were demised and let to said Cobb, he agreeing to give annually for the use thereof a certain portion of the crops of grain and other products grown thereon. At the time these contracts were entered into mortgage liens rested upon the realty. Subsequently, these liens were foreclosed, and under such foreclosure proceedings the mortgagees became the purchasers of the land, and certificates of sale were issued to them. The sales under foreclosure proceedings took place in January and April, respectively, of 1896, and, no redemption intervening, deeds passed to the purchasers six months thereafter. Crops of various kinds were cultivated upon these lands by Cobb under his contracts during the cropping season of 1895-96; and subsequent to the aforesaid sales of the land, and during the period of time allowed by law for redemption, these crops were gathered and harvested by Cobb. As provided in his contract, he set aside the portion thereof to be given for the use of the land. But, upon notice and warning from the purchasers at the sale, he refused to deliver the same to the plaintiffs, and this action was brought against him by them for a recovery of the possession thereof. Clarke died subsequent to the making of the contract with Cobb, and prior to the foreclosure proceedings. The mortgagee purchasers at the sale, claiming the property by virtue of their purchase, intervened, and have become the real defendants in interest.

It is conceded by all parties that the merits of this litigation are dependent upon the construction to be given that portion of section 707 of the Code of Civil Procedure, which provides: "The purchaser, from the time of the sale until a redemption,

Page 597

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."

At the threshold of this investigation it becomes important to determine the legal status of the contracts entered into with Cobb by Clarke and his executors. That these contracts were leases, that the conventional relation of landlord and tenant existed between the parties, and that the grains and fruits to be delivered to the landlord when gathered and harvested were rent, we are entirely satisfied. Rent is a compensation paid for the use of land. It need not be money. Any chattels or products of the soil serve the purpose equally as well. These contracts are in no sense cropping contracts. The single difference differentiating them from ordinary conventional leases is that the rent is to be paid in products of the soil, after harvest, rather than in money. But such difference is wholly immaterial, as changing the character and aspect of the instruments.

It is substantially conceded that the landlord and tenant are not cotenants in the land, but it is claimed that they are cotenants in the crops to be raised. The authorities of this state recognize that such conditions may exist. (Bernal v. Hovious , 17 Cal. 544; 79 Am. Dec. 147; Walls v. Preston , 25 Cal. 59.) But we find no apt words here to disclose such a status. When it is established that a certain contract is a lease, and that the relation of landlord and tenant exists between the parties, there must be some appropriate words in the contract to indicate that the crops raised on the lands are to be held in cotenancy, or such will not be the conclusion reached. If there is nothing in the language to indicate that intention, then the products to be delivered to the landlord after harvest, by the tenant, will be deemed the property of the tenant until that time, and treated as rent to be then paid.

There is but...

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