Reed v. Swan
| Decision Date | 03 March 1896 |
| Parties | Reed et al. v. Swan, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
Porterfield & Pence, Claude Hardwicke, and T. N. Lavelock for appellant.
(1) The crop did not pass at the trustee's sale for the reason that it did not belong to the owner of the land, the mortgagor, but to the defendant, B. F. Swan, the tenant. There was a separate ownership of the crop from that of the land and a severance in law of the crop from the land upon which it stood. Adams v. Leip, 71 Mo. 597; Jenkins v. McCoy, 50 Mo. 349; Harris v Turner, 46 Mo. 438; Morgner v. Biggs, 46 Mo 66; Towne v. Bowers, 81 Mo. 491; Willis v Moore, 59 Tex. 628; Hershey v. Metzger, 90 Pa. St. 217; Bank v. Crary, 1 Barb. S. C. (N. Y.) 542; Warren v. Leland, 2 Barb. S. C. 613; Pickens v. Webster, 31 La. Ann. 870; Everingham v. Braden, 58 Iowa 133; Gregory v. Rosencrans, 72 Wis. 220; Heavilon v. Bank, 81 Ind. 250; Barrett v. Choen, 119 Ind. 56; Wooley v. Holt, 14 Bush. (Ky.) 788; Caldwell v. Alsop, 48 Kan. 571; Bank v. Beegle, 35 P. 814; White v. Pulley, 27 F. 436. (2) 'Annual crops, crops raised by yearly labor and cultivation or fructus industriales, are to be regarded as personal chattels independent of and distinct from the land, capable of being sold by oral contract and without regard to whether the crops are growing or having matured have ceased to draw nutriment from the soil." Garth v. Caldwell, 72 Mo. 622; Smock v. Smock, 37 Mo.App. 56; Holt v. Holt, 57 Mo.App. 272; 3 Wash. Real Prop. [4 Ed.], top page 346; Benjamin on Sales [Bennett's Ed.], sec. 120. (3) It is only when such crops belong to the owner of the land that they are held to pass by a sale of the realty, and then not because they are technically a part of the realty, but for the reason that it has become a rule of construction or interpretation of the deed or contract of sale to regard the transfer of the crops, unless reserved, as within the contemplation of the parties. If severed, either in law or fact, before a sale of the realty, they do not pass and a separate ownership of the crop distinct from that of the land works a severance in law of the crop. Authorities cited under division 1. (4) The act of March 20, 1893 (Acts of 1893, p. 210), reserving to the tenant his rights to the growing and unharvested crops on a sale of the land under foreclosure proceedings, applies directly to this case. The law went into effect June 21, 1893, and the sale in this case was made July 5, 1893. The law is constitutional and valid. Cooley on Const. Lim. [5 Ed.], top pages 440-443, and cases cited; Wilds v. Van Voorhis, 15 Gray, 139; Coe v. Ritter, 86 Mo. 282; State ex rel. v. Hager, 91 Mo. 452; Porter v. Mariner, 50 Mo. 364; Henschall v. Schmidt, 50 Mo. 454. (5) The law of this state is well settled that the mortgagor is the real owner of the land, can deal with it as such so long as he is permitted to remain in possession, and is entitled to the rents and profits until entry by the mortgagee, or sale of the property under foreclosure proceedings. Kennett v. Plummer, 28 Mo. 145; Woods v. Hildebrand, 46 Mo. 284; In re Life Association, 96 Mo. 632; Fountain v. Schulenberg Co., 109 Mo. 55, 64; White v. Wear, 4 Mo.App. 34; Simpson v. Keane, 39 Mo.App. 635. (6) Such being the case, the plaintiffs had no vested right in the growing crops at the taking effect of the act of March 20, 1893. The mortgagor or his assignee could have made whatever disposition of them they pleased, without consent of the mortgagee, and without impeachment of waste. What they could do themselves the law could do for them. A mere interest in expectancy, such as the plaintiffs had in the defendant's crop before the sale, is not considered a vested right and may be abolished at the will of the legislature. See authorities cited under division 4. See, also, Baker's Executors v. Kilgore, 145 U.S. 487; Bay v. Gage, 36 Barb. 447; Percy v. Cockrill, 53 F. 872; McNeer v. McNeer, 142 Ill. 388; Loveren v. Lamprey, 22 N. H. (2 Foster) 434. (7) Defendant's fourth instruction should have been given. The plaintiffs by their agreement with G. I. Reed to accept the defendant's rent in satisfaction of interest, and thereby inducing the defendants to plant and cultivate the corn, are estopped to claim such corn. Big. on Estop., pp. 367, 445, 578; Bank v. Frame, 112 Mo. 502; Schenck v. Sautter, 73 Mo. 46; Moore v. Bank, 52 Mo. 377; Garnhart v. Finney, 40 Mo. 449; Chouteau v. Goddin, 39 Mo. 229; Miller v. Anderson, 19 Mo.App. 71; Justice v. Lancaster, 20 Mo.App. 559; Weise v. Moore, 22 Mo.App. 530. (8) Defendant's third and fifth instructions should have been given. The plaintiffs by their recognition of the defendants as tenants, and by their acquiescence in the planting and cultivating of the corn, are estopped to claim the same. 2 Wash. Real Prop. [4 Ed.], top p. 136; Masterson v. Railroad, 72 Mo. 342; Evans v. Snyder, 64 Mo. 516; Landrum v. Bank, 63 Mo. 48; Collins v. Rogers, 63 Mo. 515. Provolt v. Railroad, 57 Mo. 256.
Sandusky & Sandusky for respondents.
(1) A sale of land under a deed of trust carries title to growing crops upon the premises at the date of sale. Fischer v. Johnson, 51 Mo.App. 187; Hayden v. Burkemper, 101 Mo. 644; Vogt v. Cunningham, 50 Mo.App. 136; Watson v. Menteer, 59 Mo.App. 387; Salmon v. Fewell, 17 Mo.App. 125; Wallace v. Cherry, 32 Mo.App. 436; Wood's Landlord and Tenant, sec. 124. (2) This is true, although the crops may have been grown by a tenant of mortgagor. Fischer v. Johnson, 51 Mo.App. 157; Wood's Landlord and Tenant, sec. 124. (3) The authorities upon this question in this state are so clear and full that we deem it unnecessary to cite authorities from other states or to discuss the question. The authorities cited by appellant from this state are commented upon and distinguished by the supreme court in Hayden v. Burkemper, 101 Mo. 644. (4) The court below correctly held that the act of March 20, 1893, could not apply to this case without giving it a retrospective operation. This act took effect June 21, 1893; the sale under the deed of trust was made July 5, 1893; the corn in controversy was a growing crop when the act took effect, and the deed of trust had already attached to it and bound it as security for the debt; otherwise a sale under the deed of trust could not pass title to the crop. If, therefore, the act of March 20, 1893, affects this case as claimed, it destroys a part of respondent's security by retrospective operation. For a full discussion upon the subject of retrospective laws, see Leete v. Bank, 115 Mo. 184. (5) The action of replevin will lie for corn upon the stalk, when matured. Garth v. Caldwell, 72 Mo. 627; Hayden v. Burkemper, 101 Mo. 648; Salmon v. Fewell, 17 Mo.App. 118; Huff v. Henry, 57 Mo.App. 341. There is no element of estoppel in this case.
Action of replevin for corn on stalk. The land upon which the corn was grown originally belonged to respondents. On June 30, 1887, they conveyed the land to J. A. Hays and G. I. Reed, who, on the same day, executed a deed of trust on the land to W. H. Seeger as trustee for Missouri A. Reed, securing unpaid purchase money. J. A. Hays and G. I. Reed conveyed the land, July 24, 1888, to the Reed Springs Town Company, subject to said deed of trust, and the defendant was a tenant under said Reed Springs Town Company. On July 5, 1893, the land was sold by W. H. Seeger, as trustee, under said deed of trust, executed by J. A. Hays and G. I. Reed, and a trustee's deed, dated July 5, 1893, executed to Missouri A. Reed, the purchaser. At the date of the sale under the deed of trust, July 5, 1893, the corn in controversy was a growing crop on the land sold. Missouri A. Reed and Allen G. Reed, her husband, being very old, their business was transacted by their son, James F. Reed, clerk of the Clay circuit court.
In February, 1892, the Reed Springs Town Company rented the land to C. A. Swan, and in July, 1892, renewed the lease for the crop of 1893; on the rent for 1893 Swan paid about $ 90 cash, and assumed a note of about $ 200 due from G. I. Reed to J. D. Swan. Neither the respondents nor their son, James F. Reed, had any acquaintance with any of the Swans, nor did a word ever pass between them, upon any subject, prior to the trustee's sale. After the trustee's sale, James F. Reed, acting for respondents, suggested to Swan that, as purchaser of the land, the respondent was the owner of the crop growing upon the land, at the time of the sale, but that if the usual rent was paid, no claim would be made to the crop. Swan stated that they would entertain no proposition of any kind for a settlement; and thereupon this suit was brought.
No interest had been paid on the mortgage debt since April, 1891, and the taxes for 1891 and 1892 were unpaid; in October, 1892, James F. Reed, representing respondents, stated to G. I. Reed, that if he would pay the taxes for 1891 and 1892 and turn over to him the rents for 1893, he would not foreclose. James F. Reed, at that time, did not know that any part of the rent for 1893 had been paid to G. I. Reed. G. I. Reed neither paid the taxes, nor turned over any part of the rents, and the trustee sold the premises as herein stated.
The contentions of the defendant are: First, that although a foreclosure sale under a mortgage conveys all growing crops of a mortgagor standing on the mortgaged lands, it will not convey the growing crops of a tenant under the mortgagor with full notice of the mortgage and its conditions; second, that even if it should be held that by the law of this state prior to the act of March 20, 1893, which took effect June 21, 1893,...
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