Aultman & Taylor Co. v. O'Dowd

• Decision Date: 16 June 1898
• Citation: 73 Minn. 58,75 N.W. 756
• Court: Minnesota Supreme Court
• Parties: AULTMAN & TAYLOR CO. v O'DOWD ET AL.

73 Minn. 58

75 N.W. 756

AULTMAN & TAYLOR CO.vO'DOWD ET AL.

Supreme Court of Minnesota.

June 16, 1898.

(Syllabus by the Court.)

1. In 1889 G. owned a farm, which he mortgaged to S., who assigned it to R.; and the latter duly foreclosed the same, and purchased the premises at the foreclosure sale, July 9, 1894, and took the sheriff's certificate of sale, which he assigned to A. & T. Co., a corporation. There was no redemption, and the corporation became the owner of the premises July 9, 1895. On September 30, 1893, G. leased the premises to N. for the farming season of 1894 and 1895; the lease ending September 1, 1895. From seed grain sown on the land of the lessee in the spring of 1895, the crop matured was harvested, threshed, and removed from the premises by the lessee July 15, 1895; he having been in the continuous possession of the premises during said time. Held that, as against said corporation, G. or his lessee was the owner of said grain.

2. Where one judge presided at the trial of an action, another judge had no authority, on motion for judgment notwithstanding the verdict, to make findings of fact upon evidence not heard by him.

3. In an action of replevin, where the answer is a general denial, and the defendant does not claim a return of the property, he may prove any facts which tend to show that the plaintiff is not entitled to the possession of the property.

4. A demand in the answer for a return of the property taken from the possession of the defendant by proceedings in replevin does not raise an issue of fact, and hence an amendment permitting such demand to be inserted in the answer would not raise any new issue, or involve the pleading of any new facts. Such amendment may be allowed after trial, or after judgment, or even after appeal to this court.

Appeal from district court, Renville county; Gorham Powers, Judge.

Action by the Aultman & Taylor Company against Roderick O'Dowd and Olaf Nelson. Verdict for plaintiff. From an order granting defendants' motion for judgment notwithstanding the verdict, plaintiff appeals. Judgment affirmed as to defendant O'Dowd, and conditionally reversed as to defendant Nelson.

Chas. G. Laybourn, for appellant.

R. T. Daly, for respondents.

BUCK, J.

This action was brought to recover a crop of oats and wheat grown on 80 acres of land in Renville county during the year 1895. Before the action was commenced, the defendant Nelson had sown, grown, harvested, and threshed this grain, and removed two-thirds of the same to a granary on his own land. Prior to sowing and raising this grain, the land was owned by one William Grady, who gave a mortgage thereon to Albert Brown, dated December 6, 1889, who assigned it to A. V. Reynolds June 10, 1891; and, there being a default in the payment of the sum thereby secured, Reynolds foreclosed the mortgage, and at the foreclosure sale, on the 9th day of July, 1894, purchased the same, and took the sheriff's certificate of such sale in her own name, which subsequently, and on the 11th day of February, 1895, she assigned to plaintiff, the Aultman & Taylor Company, a corporation located in the state of Ohio. While Grady owned the land, and on the 30th day of September, 1893, he, by an instrument in writing, leased the premises to Nelson for the farming seasons of 1894 and 1895; commencing September 30, 1893, and ending September 1, 1895. By the terms of the lease, Grady was to have one-third of the crop raised, and Nelson the other two-thirds. In the absence of Grady, O'Dowd acted as his agent, and, after the grain was threshed, took one-third of the crop off the premises, and had this amount in his possession, by consent of Nelson, at the time when this action was commenced. From the confused state of the record, it is difficult to determine the number of bushels of wheat or oats, or their value, but it sufficiently appears that there were several hundred bushels of each kind of grain. Just why a joint action was brought against the parties does not appear.

The time for redemption under the foreclosure sale expired July 9, 1895; and the crops, which long previous to that time had been sown by Nelson under his lease with Grady, were harvested about the 15th day of July, 1895, and removed from the premises before this action was commenced. The question, then, is for the first time squarely presented in this court, as to who has the superior right to the crops sown by a tenant before the expiration of the time for redemption,-the purchaser at the foreclosure sale, or the lessee, who remains in possession of the premises after such sale, and who cares for the crops, harvests them, and carries them off the premises before the owner of the lands takes possession thereof. We are fully aware of the decisions in several other courts holding that where the owner of land mortgages it, and subsequently leases it, the lessee is not entitled to growing crops, as against the purchaser at the foreclosure sale, where the time for redemption expires before the maturity of the crops. These decisions are based upon the general rule of the common law that the crops are part and parcel of the realty, and belong to the owner of the land. In the case at bar there had been no entry upon the premises by the owner, or the purchaser at the mortgage foreclosure sale. That the crop was sown and raised after the foreclosure sale, and the foreclosure papers duly recorded, and Nelson apprised thereof, and notified before the sowing of the crops of 1895 that the plaintiff, in case the title should ripen in it under the foreclosure, would claim the crop, does not aid it, because it tends to place Nelson in the light of a wrongdoer, and as holding the premises wrongfully after the expiration of the period of redemption. In the case of Woodcock v Carlson, 41 Minn. 542, 43 N. W. 479, it was held that “it is the settled rule in this state that with respect to crops which are wholly the result of the labor of the disseisor, and which he has severed and removed from the premises while still in possession, the title is in him, and the sole remedy of the owner of the land is his action for mesne profits. Lindsay v. Railroad Co., 29 Minn. 411, 13 N. W. 191. It is difficult to see why, on...