McAllister v. Lawler

• Citation: 32 Mo.App. 91
• Parties: PERMELIA MCALLISTER et al., Appellants, v. WILLIAM C. LAWLER et al., Respondents.
• Decision Date: 16 October 1888
• Court: Court of Appeal of Missouri (US)

32 Mo.App. 91

PERMELIA MCALLISTER et al., Appellants, v. WILLIAM C. LAWLER et al., Respondents.

Court of Appeals of Missouri, St. Louis.

October 16, 1888

Appeal from the Pike Circuit Court. --HON. E. M. HUGHES, Judge.

AFFIRMED.

Elijah Robinson and Reuben F. Roy, for the appellants.

The wheat in controversy was growing upon the mortgaged premises and was not mature at the time of the foreclosure sale under the deed of trust, to-wit, on March 8, 1886, and the plaintiff by her purchase at said sale acquired the title to the wheat. Salmon v. Fewell, 17 Mo.App. 118; Shepard v. Philbrick, 2 Denio 175; Lane v King, 8 Wend. 584; Jones v. Thomas, 8 Blackf 428; Jones on Mortgages, sec. 697. By the foreclosure sale the relation of mortgageor and mortgagee ceased, and the title to the land and the growing crop thereon passed to the purchaser, and the defendants having had the benefit of the value of the crops in the reduction of their debt by said sale, cannot after such sale claim the benefit of the rule which permits the mortgagee while in possession to harvest and remove the crop. Crews v. Pendleton, 1 Leigh 297; Gillett v. Balcom, 6 Barb. 370; Lane v. King, 8 Wend. 584; Salmon v. Fewell, supra.

Smith & Hostetter, for the respondents.

The undisputed evidence in this case shows that the defendants were at the time of the replevin suit, and had been for more than two years, in the possession of the premises upon which the wheat was grown, and that they had harvested the same. Under this state of facts the plaintiffs cannot recover. Adams v. Leip, 71 Mo. 349; Jenkins v. McCoy, 50 Mo. 349; Harris v. Turner, 46 Mo. 438; Morgnes v. Briggs, 46 Mo. 66.

OPINION

PEERS J.

This is an action in replevin for a crop of wheat standing in the shock, which plaintiffs claim by reason of their ownership of the land on which the wheat was grown. The suit was begun in Ralls county on the thirtieth day of June, 1886, and by change of venue transferred to and tried in the circuit court of Pike county. From the record it seems that plaintiffs had a deed of trust on the land given by defendants on the fourth of September, 1883, which was foreclosed by the trustee on the eighth of March, 1886, and the plaintiffs became the purchasers. At this time the wheat crop in controversy was growing upon the premises. Defendants remained in possession after the sale, harvested the wheat crop and put it in shock. There is no question about the wheat being sown, raised, harvested, and put in the shock by the defendants while in possession of this land, nor was there any abandonment by defendants of the possession of the land on which the wheat was grown.

On the trial of the cause defendants had judgment, from which plaintiffs appealed, and seek a reversal thereof because of alleged errors in the reception and rejection of evidence, and in giving and refusing of instructions.

Upon the facts alone, without regard to the question whether the defendants were the mortgageors, licensees, tenants, or mere trespassers under the decisions of the supreme court, as laid down in Adams v. Leip, 71...