Hartshorne v. Ingels

• Decision Date: 12 May 1909
• Docket Number: Case Number: 5 OK Ter
• Citation: 101 P. 1045,1909 OK 99,23 Okla. 535
• Parties: HARTSHORNE v. INGELS.
• Court: Oklahoma Supreme Court

1909 OK 99

101 P. 1045

23 Okla. 535

HARTSHORNE v. INGELS.

Case Number: 5 OK Ter

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 CROPS--Ownership--Matured Crops. Where there has been a recovery of the possession of land held adversely, the successful plaintiff is entitled to a matured crop of corn standing unsevered on such land at the time of the final judgment of ouster and delivery of possession of the premises to plaintiff under a writ of restitution.

Error from Probate Court, Kay County; R. L. Howsley, Judge.

Action by H. A. Ingels against T. M. Hartshorne. Judgment for plaintiff. Defendant brings error. Reversed and remanded.

This is an action of replevin wherein H. A. Ingels, defendant in error, plaintiff below, seeks to recover from T. M. Hartshorne, plaintiff in error, defendant below, the possession of 1,000 bushels of corn, grown and produced by plaintiff on the northeast quarter of section 8, township 26 north, range 2 east, Indian Meredian, Kay county, during the year 1906. The case was tried to the court without a jury upon an agreed statement of facts. For some time prior to the 21st day of June, 1905, a contest had been pending before the Secretary of the Interior between defendant, T. N. Hartshorne, and one F. A. McKee, to determine who had the right to take as a homestead the land upon which the corn was grown. Pending the contest McKee occupied that portion of the quarter section upon which the corn was grown. The contest having been decided by the Secretary of the Interior in favor of Hartshorne, he instituted forcible entry and detainer action in one of the justice courts of Kay county to recover possession of that portion of the quarter section theretofore occupied by McKee. Judgment was rendered in the district court of Kay county on appeal on June 21, 1905, in favor of Hartshorne. Appeal from this judgment was taken to the Supreme Court of the territory, where it was dismissed. Certificate of such dismissal was filed in the district court of Kay county on October 4, 1906, and on October 19, 1906, a writ of restitution was served, whereby Hartshorne was placed in possession of the premises whereon the corn in controversy was then standing, fully matured, but ungathered. Plaintiff Ingels was not a party to the forcible entry and detainer action, but he had occupied and cultivated during the year 1906 as tenant of McKee the land upon which the corn was grown. He had no contract with Hartshorne in reference to the land cultivated by him or the corn grown thereon. It is agreed that the corn was seasonably planted and cultivated by plaintiff as the tenant of McKee during the year 1906, and that, at the time of the dismissal of the appeal in the Supreme Court in the forcible entry and detainer action, said corn crop was standing in the field fully and completely matured, unharvested, and unsevered from the soil, and that it was standing in that condition when the writ of restitution was served on the 19th day of October, 1906. The judgment of the district court was in favor of plaintiff for the possession of the corn. From this judgment a proceeding in error was taken by defendant to the Supreme Court of the territory, where it was pending at the time of the admission of the state, and it is now before this court under the provisions of the Enabling Act (Act Cong. June 16, 1906, 34 Stat. 267, c. 3335) for final disposition.

L. A. Maris, for plaintiff in error, cited: 8 Am. & Eng. Enc. of Law (2nd Ed.) 306; 12 Cyc. 977-8; Freeman v. McLennan, 26 Kan. 151; Tripp v. Hasceig, 20 Mich. 254; McGinnis v. Fernandes, 135 Ill. 69; Phillips v. Keysaw, 56 P. 695 (Okla.); Kittridge v. Wood, 3 N.H. 503.

Moss, Lowe & Turner, for defendant in error.

HAYES, J.

¶1 It is conceded correctly we think by counsel for plaintiff that plaintiff's rights are identical with the rights of his landlord, McKee. McKee occupied the land prior to the time he was ousted therefrom by the writ of restitution under a claim that he had a right to homestead the same. He was therefore holding the land adversely to Hartshorne, the plaintiff in the ejectment suit and defendant in this action. Phillips v. Keysaw et al., 7 Okla. 674, 56 P. 695. The question, therefore, presented by this appeal is whether the crops cultivated and grown and fully matured are personal property as between the successful plaintiff in an action of ejectment and the evicted defendant who held the premises in adverse possession.

¶2 Plaintiff relies principally upon Hecht v. Dittman, 56 Iowa 679, 7 N.W. 495, 10 N.W. 241, 41 Am. Rep. 131, and First Nat. Bank v. Beegle, 52 Kan. 709, 35 P. 814, 39 Am. St. Rep. 365, as supporting his contention that matured crops, as between the successful plaintiff in an ejectment suit and the evicted adverse holder, do not follow the real estate, although at the time of the ouster such crops are standing unsevered upon the premises in controversy. We do not think that these cases are directly in point, and should control us in the decision of this case. There is some conflict among authorities as to when growing crops are to be regarded as personal property, and when they are to be regarded as a part of the realty. The weight of authorities supports the rule that annual crops--fructus industriales--are subject to levy and sale as chattels for the debts of the owner; but as between the grantor and the grantee, and as between the mortgagor and the purchaser at a foreclosure sale, they are a part of the realty and pass with the realty upon which they stand to the grantee or purchaser, unless reserved. In Hecht v. Dettman the defendant was a tenant of a mortgagor against whom foreclosure had been made. The plaintiff was the purchaser at the foreclosure sale, and at the time of the execution by the sheriff of the deed to plaintiff defendant, as tenant of the mortgagor, had standing upon the mortgaged premises a crop of grain, then mature and ready for harvesting, but unharvested. The court held that the matured grain, although unsevered, was personal property, and did not pass with the realty under the foreclosure deed. The court supported its conclusion with the reasoning that, the grain being mature, the course of vegetation had ceased and the soil was no longer necessary for its existence; that the connection between it and the ground was changed, and the ground no longer performed any office other than to afford a resting place for the grain. First Nat. Bank v. Beegle is based upon a state of facts very similar to the facts in Hecht v. Dettman, and the court therein holds that, as between the tenant of the mortgagor and the purchaser at the foreclosure sale, unsevered matured crops upon mortgaged premises are personal property, and do not follow the realty, and that the character of the crops as personalty is determined by its immaturity or maturity, and not by the fact that it is severed or unsevered.

¶3 This rule of the courts of Iowa and Kansas we do not believe to be in harmony with the weight of authorities, but, whether it is or not, we think that the rule therein announced does not apply to the facts in the case at bar, and that the decided weight of authorities is that unsevered crops, although mature, are a part of the realty as between the plaintiff in an ejectment suit and the evicted defendant. When the crops become severed, they are then regarded as personal property. Upon this question there is but little or no conflict among the authorities. Phillips v. Keysaw et al., supra.

¶4 Tripp v. Hasceig, 20 Mich. 254, 4 Am. Rep. 388, is a case wherein the grantor brought replevin for a crop of matured corn standing in the field unharvested at the time of the conveyance. The court in a well-reasoned opinion, supported by, numerous authorities follows the doctrine which is in direct conflict with the rule in Hecht. v. Dettman and First Nat. Bank v. Beegle. The court in that case says:

"It is true that the authorities in alluding to this subject very generally use the words 'growing crops' as those embraced by a conveyance of the land, but this expression appears to have been commonly employed to distinguish crops still attached to the ground rather than to make any distinction between ripe and unripe crops."

¶5 And, further speaking of the merits of this rule, the court said:

"Indeed, the authorities are quite decisive that whether the crop of the seller of the farm goes with the land to the purchaser of the latter, when there is no reservation or exception, depends upon whether the crop is at the time attached to the soil, and not upon its condition as to maturity. And this seems to be the most natural and practical rule. When parties are bargaining about land, the slightest observation will discover whether the crops are severed or not, and there will be no room for question or mistake as to whether they belong with the land or not, if owned by the vendor."

¶6 In Wootton v. White, 90 Md. 64, 44 A. 1026, 78 Am. St. Rep. 425, the court said:

"So long as the crop remains physically unsevered, it partakes of the nature of the realty as between the mortgagor and mortgagee. It forms part of the latter's security for the payment of the debt, and all persons dealing with the mortgagor in respect to it whilst it remains actually attached to the freehold deal subject to all the rights of the mortgagee unimpaired and unaffected."

¶7 In this case the court follows the rule that as between the mortgagor or any one claiming under him, and the purchaser at the foreclosure sale, the growing crop does not become personal property until it is actually severed from the land, and, in the absence of such severance, passes to the purchaser.

¶8 In Mississippi the doctrine prevails that the execution of a mortgage vests in the mortgagee no estate in the land, but gives to him a lien thereon to secure the payment of the...