Nichols v. Lappin

• Decision Date: 01 March 1904
• Citation: 105 Mo. App. 401,79 S.W. 995
• Parties: NICHOLS et al. v. LAPPIN.
• Court: Missouri Court of Appeals

79 S.W. 995

105 Mo. App. 401

NICHOLS et al. v. LAPPIN.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

MORTGAGES — FORECLOSURE — GROWING CROPS — RIGHTS OF TENANT.

1. Rev. St. 1899, § 4355, provides that all sales made by a mortgagee under the mortgage shall foreclose the equity of redemption by the mortgagor, provided that this shall not affect in any way the rights of a tenant to the growing crops to the extent of his interest therein. Held, that where a mortgagor leased the mortgaged land while a purchaser at a foreclosure sale held title, or after the setting aside of such sale, but during a definite period of redemption allowed by the court, at the close of which the land was to be sold and the purchaser given immediate possession, the proviso of the above statute does not apply, and the tenant is not entitled, after the expiration of the redemption period, to harvest growing crops which he knew could not mature within that period.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by E. C. Nichols and another against Lorin Lappin. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Hamlin & Mason, for appellants. White & McCammon and Wright Bros., for respondent.

GOODE, J.

The purpose of this suit was to have the defendant enjoined from gathering and removing two-thirds of a crop of corn from 28 acres of land in Greene county. That tract was part of a farm of 320 acres formerly owned by the defendant's father, George Lappin, who, with his wife, Mollie, gave a deed of trust on it July 14, 1900, to Jacob Krieder, trustee, for the benefit of the plaintiff, the Nichols & Sheppard Company, a corporation, and to secure the payment to that company of three promissory notes for $725 each, executed by the grantors, George and Mollie Lappin, and by this defendant, who, however, was not a party to the deed of trust. On default in payment of the notes the trustee advertised the land, and sold it March 23, 1901, under the power that the deed conferred on him; the purchaser being one of the plaintiffs, E. C. Nichols, to whom a deed for the land was executed by the trustee on that day. George and Mollie Lappin afterwards brought suit in the circuit court of Greene county against the present plaintiffs to have the trustee's sale set aside. That suit proceeded to a judgment during the January term, 1902, to wit, on April 19, 1902, by which the sale was set aside, and George and Mollie Lappin permitted to redeem the land by paying what they owed on the notes and all costs on or before June 7, 1902. It was further adjudged that, if they failed to pay those sums by the date fixed, the sheriff of Greene county should sell the real estate under a special execution, execute a proper deed to the purchaser, and place him in possession of the premises. In the spring of 1902—at just what date was not shown, but, by fair inference, prior to the date of said judgment; that is, prior to April 19th—George Lappin leased the tract on which grew the corn in controversy to his son Lorin, who planted and raised the crop. His parents failed to redeem their farm on or before June 7th, as the judgment in their favor provided they might; and the sheriff, pursuant to the judgment, advertised it under a special execution August 12, 1902, when it was again bought by E. C. Nichols. In October George and Lorin Lappin began to gather Lorin's share of the corn crop and put it in a crib. His share was two-thirds of the crop. The other third went to his father for the rent. This action was instituted to restrain Lorin Lappin from removing the corn, and at the same time another action was instituted against George and Mollie Lappin to restrain them. A temporary injunction was granted, but on the final hearing was dissolved, and the plaintiffs appealed.

As to the contention that the defendant's tenancy was fictitious, and trumped up to defraud the plaintiffs, we answer that the evidence to prove the parcel of ground on which the corn in dispute grew had been leased by George Lappin to the defendant is not so weak that we are willing to discard the finding of the court below and hold no leasing was established. That the growing crop of corn became the property of the plaintiff E. C. Nichols, as purchaser at the foreclosure sale, unless it was saved to the defendant as tenant by virtue of section 4355 of the Revised Statutes of 1899, is conceded. The section reads as follows: "All mortgages of real or personal property, or both, with powers of sale in the mortgagee, and all sales made by such mortgagee, or his personal representatives, in pursuance of the provisions of such mortgages, shall be valid and binding by the laws of this state upon the mortgagors, and all persons claiming under them, and shall forever foreclose all right and equity of redemption of the property to be sold: provided, that nothing herein shall be construed to affect in any way the rights of a tenant to the growing and unharvested crops on lands foreclosed as aforesaid, to the extent of the interest of such tenant under the terms of contract or lease between such tenant and the said mortgagor or his...