Kuiper v. Miller
| Decision Date | 30 December 1925 |
| Court | North Dakota Supreme Court |
Rehearing denied February 26, 1926.
Appeal from the District Court of Cass County, Cooley, J.
Affirmed.
W. J Courtney, for appellant.
Wood & Breaw, for respondent.
Plaintiff brought an action in conversion against the defendant, a sole trader doing business as the J. C. Miller Elevator. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
The complaint alleges that on or about March 1, 1919, one Sandum was the owner of certain real estate, situated in Cass county, and then executed a mortgage thereon securing an indebtedness due the plaintiff; that this mortgage was subsequently foreclosed, owing to defaults thereunder, and that, in due course, a sheriff's certificate of sale was executed to him on January 23, 1924; that such certificate was, on the 28th of January, 1924, recorded in the office of the register of deeds. It is alleged that thereafter the mortgagor rented the land to one Grieger, for the season of 1924, and that the mortgagor "was to receive one third of all grain sown, grown and raised upon said land during said season;" that "pursuant to such rental agreement, said R. R. Grieger farmed the said premises" during the season of 1924, and delivered a part of said one third of the crop to the defendant, to wit: 199 bushels, 20 pounds of wheat; that on January 28, 1925, the sheriff executed to plaintiff a sheriff's deed of the premises.
It is then alleged that under § 7762, Comp. Laws 1913, the plaintiff is entitled to the possession and is the owner of "that portion of the grain so grown upon said premises under and by virtue of said foreclosure proceedings which would otherwise inure to the said K. O. Sandum, and a portion of which as hereinbefore described was delivered to the defendant." It is alleged that a demand was made for the delivery of the grain, or the value thereof, and that such demand was refused; that the action for the recovery of the grain, or its value, has been prosecuted with diligence and that, therefore, under § 7168, Comp. Laws 1913, the plaintiff is entitled to the highest market price, at Mortimer, Cass county, intervening the date of the conversion in October, 1924, and the date of the verdict herein. It is alleged, further, that the plaintiff is the owner and holder of the sheriff's certificate of sale and the sheriff's deed "and by reason thereof is entitled to the said grain as hereinbefore alleged." The plaintiff prays for judgment against the defendant for the highest market value of the grain between the date of the conversion and the date of the judgment, and for his costs.
The trial court overruled defendant's demurrer, whereupon a stay was procured and the defendant appealed from the order. It appears to be the position of the defendant on this appeal that the plaintiff, who is the holder of a sheriff's certificate of sale, has no right, as such holder, to sue the defendant in conversion on the theory that the latter received from one in possession of the land under a lease from the mortgagor, the grain raised upon the premises during the period of redemption, and who had received no actual notice of the claims of the certificate holder to any part of the crop.
We think the complaint is drawn on the theory that the defendant converted a part of that portion of the crop which, under the contract between the mortgagor and the tenant Grieger, constituted the agreed rental for the use of the land during the farming season of 1924, that is, during the period of redemption. On the face of the complaint the sole question seems to be whether, in such circumstances, the holder of the sheriff's certificate, who, under § 7762, was entitled to receive from the tenant in possession "the rents of the property sold, or the value of the use and occupation thereof," may maintain an action in conversion against the purchaser of that portion of the grain which the mortgagor and the renter have agreed shall be delivered to the mortgagor as the stipulated rental for the period of redemption.
Section 7762, Comp. Laws 1913, so far as material, reads:
"The purchaser from the time of the sale until a redemption and a redemptioner from the time of his redemption until another redemption is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof."
The purchaser at the foreclosure sale--the holder of the sheriff's certificate--is entitled to one of two things the "rents," or the "value of the use and occupation," of the property sold. Martin v. Royer, 19 N.D. 504, 125 N.W. 1027; Whithed v. St. Anthony & D. Elevator Co., 9 N.D. 224, 50 L.R.A. 254, 81 Am. St. Rep. 562, 83 N.W. 238. In § 5289, Comp. Laws 1913, limiting the term of leases of urban and agricultural property, the word "rent" is used. In Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442, this court discussed at some length the legal meaning of this term. It was there held, in substance, that "rent," as used in the statute limiting the term of leases, is a periodical or "a certain yearly profit, or labor, issuing out of land and tenements, in retribution for its use." (Emphasis is ours.) This is the primary meaning of the term as it has come to us from the common law. It is not, except perhaps, in special circumstances, synonymous with "value of the use and occupation." See Spraker v. Cook, 16 N.Y. 567. Section 7762, supra, itself furnishes the evidence, if any were needed, that the legislature used the term "rent" in the sense defined in Wegner v. Lubenow, Whithed v. St. Anthony & D. Elevator Co. and Martin v. Royer, --supra. The purchaser is entitled not only to the "rents," but to the "value of the use and occupation" of the property--a distinct legislative recognition of an essential difference between the two. While it is true that "rent," in its broadest or secondary meaning, may include all the profit issuing annually out of the lands in return for their use, it is not used in this enlarged sense in § 7762. "Rent," it has been held, suggests a fixed amount, or one that can be made certain and fixed. Raynolds v. Hanna (C. C.) 55 F. 783. The inference strongly arises, from the holding in Wegner v. Lubenow, supra, that in order to constitute "rent," within the statute, there must be a reservation of periodical or annual payments in the lease, whether the lease be oral or in writing, and that if there be no such reservation of payment, the consideration paid for the use of the land cannot be denominated "rent" in the primary or statutory sense. We are of the opinion that "rent," within the contemplation of § 7762, can come into being only by agreement; and that the second clause of the statute is intended to meet a situation where no agreement as to rental has been made, and when, therefore, only the value of the use and occupation may be recovered. A situation clearly coming within the second clause is one where the mortgagor himself farms the land. In such case there is no "rent," within the statute, but the certificate holder is entitled to the value of the use and occupation. Geo. B. Clifford & Co. v. Henry, 40 N.D. 604, 169 N.W. 508. From what we have said it follows that the holder of the Sheriff's Certificate is, under § 7762, entitled to the rent which the lessee of the property agreed to pay for the use of the land; if there be no agreement as to rent, or...
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