Hayden v. Burkemper

• Decision Date: 01 December 1890
• Citation: 14 S.W. 767,101 Mo. 644
• Parties: HAYDEN v. BURKEMPER.
• Court: Missouri Supreme Court

14 S.W. 767

101 Mo. 644

HAYDEN v. BURKEMPER.

Supreme Court of Missouri.

December 1, 1890.

FORECLOSURE SALE — GROWING CROPS.

A vendee of land, who assumes the payment of a mortgage thereon, stands in the position of a mortgagor in possession, and on foreclosure sale the growing crops planted by him while so in possession pass to the purchaser as accessories to the land. Distinguishing Jenkins v. McCoy, 50 Mo. 348.

Error to circuit court, St. Charles county; W. W. EDWARDS, Judge.

R. H. Norton and T. F. McDearmon, for plaintiff in error. Theo Bruere, for defendant in error.

BLACK, J.

J. R. Hayden brought this action of replevin against Christian Burkemper to recover 1,800 shocks of wheat, alleged to be of the value of $800. There is no dispute as to the facts. Plaintiff sold 240 acres of land to one Cambron on the 10th September, 1882. Cambron, at the same time, gave plaintiff a deed of trust on the land to secure seven notes, one for $5,500, due in five years, one for $2,000, due in three years, and five for $395 each, being annual-interest notes. On 10th September, 1884, Cambron sold the land to defendant, who assumed payment of the notes as part of the purchase price. Defendant paid plaintiff $708 on the 5th January, 1886, to be applied on the two interest notes first maturing, but he made no other payments. Plaintiff assigned the $2,000 to Mrs. Stahlschmidt, and transferred the $5,500 note to Dyer, as collateral security. Plaintiff frequently urged defendant to pay the notes which were due, and defendant as often promised to do so, but never fulfilled his promises. Matters stood in this shape on the 4th June, 1887, when the land was sold under the deed of trust, and Dyer became the purchaser. Defendant took possession of the land at the date of his purchase, and at the time of the trustee's sale had 65 acres in wheat, which was nearly ripe. Dyer sold the growing crop of wheat to plaintiff, and gave him a bill of sale therefor. Plaintiff and defendant both claimed the wheat after the trustee's sale; but defendant being in possession cut it, and hence this suit. On the foregoing facts, the circuit court gave judgment for the plaintiff, which was affirmed by the St. Louis court of appeals. The case was then certified to this court because one of the judges deemed the opinion in conflict with prior decisions of this court. The case presented by this record falls within plain and very well-settled principles of law. The deed of trust was in effect a mortgage. The defendant, having purchased the land subject to the deed of trust thereon, stood in the position of a mortgagor in possession. The case then is simply this: The mortgage was foreclosed by a sale thereunder, while the mortgagor was in possession, and the owner of the growing wheat sown and owned by him; and the question is, to whom does the wheat belong? It was held by this court years ago that a conveyance of land carried the crop of wheat growing upon it, owned by the vendor. Growing wheat, it was held, is a part of the freehold, and passes along with the land on which it is...