Albrethsen v. Clements
| Decision Date | 22 July 1929 |
| Docket Number | 5159 |
| Citation | 48 Idaho 80,279 P. 1097 |
| Parties | ALBERT ALBRETHSEN, Respondent, v. AARON CLEMENTS, Sheriff of Blaine County, and PICABO STATE BANK, a Corporation, Appellants |
| Court | Idaho Supreme Court |
MORTGAGES-FORECLOSURE SALE-POSSESSION BY PURCHASER-CROPS GROWN DURING PERIOD OF REDEMPTION-OWNERSHIP-POSSESSION-ESSENTIAL EVIDENCE-LANDLORD AND TENANT-CROP MORTGAGES-LIEN.
1. Mortgagor had no interest in crop grown and harvested by purchaser at foreclosure sale and his tenant during time for redemption and while mortgagor had right to possession, but after he had given up possession, crop belonged to purchaser and tenant and they were entitled to its possession.
2. Fructus industriales belong to one who, while in possession of the land, has grown them and severed them from the land though his possession was without right as against the true owner of the land.
3. Fact of possession or occupancy of land, neither title thereto nor right to its possession being involved, may be established like any other fact, and an instrument in writing is not necessary, C. S., sec. 7974, requiring transfers of real estate to be in writing, being inapplicable.
4. One who, having bought land at mortgage foreclosure sale, rented it to another for a third of the crop, had, after crop was harvested and divided, such interest in his one-third share though not delivered to him, that he could maintain action of claim and delivery therefor where it was sold under foreclosure of crop mortgage given by prior owner of land.
5. Under C. S., sec. 6373, lien of mortgage on crop to be sown does not attach to a crop not sown or caused to be sown by mortgagor, but by another, mortgagor not having or retaining interest thereon.
APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.
Action in claim and delivery. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs to respondent. Petition for rehearing denied.
Sullivan, Sullivan & Van Winkle, for Appellants.
A chattel mortgage on crops to be sown, when duly recorded, is notice to all persons acquiring or claiming to have acquired rights in or to the mortgaged property through or under the mortgagor subsequent to the recording of the mortgage.
Where the statute allows a period of redemption after foreclosure sale the possession of the premises remains in the mortgagor and the rents and profits continue to be his until that period expires. (27 Cyc. 1731, and cases cited under note 12.)
J. G. Hedrick, for Respondent.
There is a great difference of opinion in the courts as to what is a cropping contract and what is a lease, but the supreme court of California, in a later case, which was a lease, held that while the relation of landlord and tenant might exist between the owner and lessee, yet the parties thereunder were tenants in common of the crops and that the lessor could sue the purchaser of the grain from the tenant in conversion. The court in this case reviews a great many authorities on this question, including the case of Clarke v. Cobb (Cal.), 54 P. 74, and finally holds that under this form of a contract a tenancy in common is created in the crops.
If anything, Martin Albrethsen in this case had nothing but a mere right of possession, and this is not property in any sense and he could abandon this right at any time. Under our law (sec. 6930, C. S.), upon a sale of real property the purchaser is substituted to and acquires all of the right, title, interest and claim of the judgment debtor therein, and this court has held that the sheriff's certificate of sale vests in the purchaser the legal title subject to the right of redemption only, and upon the issuance of the sheriff's deed the full title relates back to the date of such certificate. (Syster v. Hazzard, 39 Idaho 580, 229 P. 1110.)
The "equity of redemption" is not property in any sense, as it is not subject to execution and sale, but a mere personal privilege. (Hamilton v. Hamilton, 51 Mont. 509, 154 P. 717; State v. Stephens, 63 Mont. 318, 206 P. 1094.)
Martin Albrethsen, being the owner of certain real property in Blaine county, in 1921, mortgaged it to his brother Albert, the respondent; and in the spring of 1924 made and delivered to the Picabo State Bank, one of the appellants, to secure an indebtedness to it, a chattel mortgage on certain specific personal property, including his interest in crops to be thereafter grown on the mortgaged land. The crop raised in 1924 did not satisfy the debt. In the fall of 1924, respondent commenced his suit to foreclose the real mortgage and such proceedings were had that he purchased the real property at foreclosure sale and received the sheriff's certificate of sale dated February 14, 1925. Early in 1925 Martin quit the "Home Place," and respondent rented it to Adolph, the son of Martin, for one-third of the crop. Just as soon as the 1925 crop was harvested the bank proceeded to foreclose its 1924 mortgage on one-third thereof. The identical share was claimed by respondent, but was sold by the sheriff to the bank. In defense of the action in claim and delivery, the bank denied the respondent's allegations, set up the chattel mortgage and the sale of the crop under foreclosure, alleging that the subject of the action belonged to Martin, the mortgagor. On conflicting but sufficient evidence, the court found that respondent "was the owner of and entitled to the possession of the" crop, which "the said defendants wrongfully and unlawfully sold and converted . . . . to their own use and benefit. . . ." From a judgment for plaintiff, the defendants appeal.
Before the 1925 crop was sown or grown, the legal title to the land had passed to respondent (Syster v. Hazzard, 39 Idaho 580, 229 P. 1110), but there remained to the judgment debtor the right to possession...
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