Opperman v. Littlejohn

• Citation: 54 So. 77,98 Miss. 636
• Decision Date: 30 January 1911
• Docket Number: 14774
• Court: Mississippi Supreme Court
• Parties: CHARLES OPPERMAN v. CHARLES LITTLEJOHN

54 So. 77

98 Miss. 636

CHARLES OPPERMAN v. CHARLES LITTLEJOHN

No. 14774

Supreme Court of Mississippi

January 30, 1911

APPEAL from the circuit court of Warren county, HON. CHAS. S THOMAS, Special Judge.

Suit by Charles Littlejohn against Charles Opperman et al. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Hudson & McKay, for appellant.

The sole and simple question of law involved in this case is: To whom, the landlord or the tenant, does an unharvested crop belong after the expiration of a fixed and definite lease term? We answer, the landlord, and so beyond question answers the law.

At the outset, we assume that it is conceded that the common law obtained in this state, unless repealed, changed or modified by statute. 42 Miss. 1. It is also, of course, conceded that the common law, in the absence of a statute, is decisive of this case. Let us then address ourselves to the ascertainment of what the common law is as applicable to the facts before us. Authorities without number and in point are at hand and we are happily assured with unanimity.

It may not be amiss to have a few rudimentary and fundamental definitions. In the first place, we here have to do with what in law is known as a tenancy for years, an estate for years a tenant holding for a definite period, a lease whose day of expiration is prefixed, foreknown and made certain at the beginning. From page 958 of 24 Cyc., we quote: "Estates for years embrace all terms limited to endure for a definite and ascertained period, however short or long this period may be; that is to say, they embrace terms for a fixed number of weeks or months, or for a single year, as well as for any definite number of years, however great. "Every estate which must expire at a period certain and prefixed is in legal contemplation an estate for years. 9 Pa. Co. Ct. 56. A lease for years is a contract, by which one agrees, for a valuable consideration, called rent, to let another have the occupation and profits of land for a definite time. 50 N.C 272.

We have to do too with emblements and we have found no better definition than in section 70 of Tiedeman on Real Property. We quote: "Emblements are the profits which the tenant of an estate is entitled to receive out of the crops which he has planted, and which have not been harvested, when his estate terminates."

And we will frequently meet the term "growing crops." In 20 Mich. 254, 4 Am. Rep. 388, the court said: " this expression appears to have been commonly employed to distinguish crops still attached to the ground, rather than to mark any distinction between ripe and unripe crops." Growing crops are all unsevered crops.

Thus understanding the terms and the point at issue, let us listen to the authorities.

From page 320 of vol. 8 of Am. and Eng. Ency. of Law we quote: "Where the term is certain and fixed in time, the tenant has no right to crops growing on the land at the time of the termination of the tenancy but maturing afterwards, for it was his own folly to sow when he knew that his estate must terminate before he could reap." From page 1069 of 24 Cyc. (III), we quote: "At common law, where land is leased for a number of years, and consequently the period of its determination is fixed, and the lease is silent as to who shall be entitled to the growing crops on the land at the end of the term, the outgoing tenant is not entitled to such crops." 37 Me. 106; 48 Mo.App. 430; 10 Johns. (N. Y.) 424 and 360; 77 N.C. 255; 18 S.C. 108; 36 Tex. 149; 2 Rob. (Va.) 606; 1 W.Va. 197; 7 M. & W. (Eng.) 226. From page 211 of vol. 18, Am. and Eng. Ency. of Law, n. Emblements, we quote: "The law has always been that if a tenant for years sows a crop during the last year of the term, and it is not harvested before the end of the term, the landlord is entitled thereto; the right to emblements is given to a tenant only when the termination of his tenancy is uncertain." From pages 545 and 546 of vol. 12 of Cur. Law we quote: "The right to emblements does not exist where the term expires at a fixed time, but only when of indefinite and uncertain duration." From section 71 of Tiedeman on Real Property we quote: "In order that a tenant may claim emblements, he must show that his estate was one of uncertain duration." From section 536 of Taylor's Landlord and Tenant we quote: "This right (Emblements), however, never exists where the tenancy is for years, to be determined at the expiration of a certain period." Coke Litt. 55. From page 112 of 4 Kent we quote: "The tenant for years is not entitled to emblements, provided the lease be for a certain period, and does not depend upon any contingency." Likewise was the Roman Law, Dig. 19, 29. To the same effect too are 2 Kerr on Real Property, section 1333; 1 Tiffany on Real Property, section 53; Blackstone 526. From page 462 of 46 Sou. Rep. (Ala. 1908), we quote: "Where the tenancy is for a certain period, the tenant is not entitled to emblements on the termination of the tenancy." From page 510 of 30 Am. Dec., 7 Leigh Va. 632, we quote: "The lease in this case having a fixed and certain period for its termination, it is clear, beyond doubt, that the offgoing tenant had no right, at common law, to any crops growing on the land, after the termination of the lease . . ." To the same effect is 30 Am. Dec. 658, 4 Blackford (Ind.), 286. Unsevered crops are realty and follow the title to the land as a part thereof. 34 L. R. A. 286; 3 Sm. & M. 409; 75 Miss. 798.

Anderson, Vollor & Foster, for appellee.

Charles Opperman, a landlord, the appellant in this case, claims to be the owner of the four bales of cotton in controversy, which was planted and raised by Charles Littlejohn, tenant, appellee, because Littlejohn failed to pick and remove the cotton on or before the 31st day of December, 1909, the date of the expiration of appellee's lease of the land of appellant. This claim is made on the idea that the cotton remaining on the leased premises at the termination of the lease, became a part of the realty and was therefore appellant's property and tenant had no right to remove it after the lease had expired.

The position taken by appellant in this case is untenable, and it is doubtful if such an unjust claim was ever made before in the courts of this state. The argument made and the authorities cited in the brief of counsel for appellant would surely apply in the law of emblements in the case of a tenant, for a term of years, the termination of whose lease was fixed and certain, who sowed a crop that he could not hope to reap before the termination of his tenancy. In this state the tenant, appellee, sowed cotton and he had every reason to believe that he could pick and gather the fruits of his labor before his lease expired. We do not invoke the rule of law applicable to the law of emblements for the appellee in this case, and we therefore contend that the brief of counsel has no application to the issue involved in this controversy.

By a reference to the agreed statement of facts, the court will see that the appellee leased land from the appellant for one year, to plant a crop of cotton, and that the lease was to expire on the 31st day of December, 1909; that he planted his crop, which he reasonably hoped to reap before the termination of his tenancy, but that he did not gather the four bales of cotton involved in dispute until about ten days after the lease matured.

The court will observe too from the agreed statement of facts that at the expiration of the lease, the crop matured. The fact that the crop was matured and ripe, ready for picking, made it the personal property of the appellee, with the right to remove it or otherwise dispose of it as he saw fit. The mature cotton could in no possible event under our law pass with the realty or become the property of the landlord at the termination of the lease.

"Crops that are mature are personal property, and are not part of the realty." Words and Phrases, title Personal Property.

In furtherance of this correct theory of the law upon which we base our claim to the ownership of this property, the following text expressed in Cyc. Law and Procedure, vol. 24, p. 1067, should finally and forever put an end to the unjust and unreasonable claim of the appellant here:

"As between the landlord and the tenant, the annual crop raised on the leased property constitutes no part of the freehold, and when matured or severed from the soil during the term of the tenant's lease, it becomes his personal property, which he may dispose of as he sees fit, in the absence of the provision in the contract for the rental that the crops shall be the property of the landlord until rent is paid or secured, and where the rental is to be paid in a portion of the crop, the landlord is not entitled to take his portion until it is either delivered to him by the tenant, or severed and set apart for his use."

This cotton, at the time the appellant claimed it as a part of the realty, was matured, and was not a part of the realty, and being the personal property of the tenant, he had a right as the owner, to pick it and remove it within a reasonable time after his lease expired, subject perhaps to a reasonable compensation to the landlord for the use and occupancy of the land necessary for that purpose. This compensation the landlord does not contend for. He is claiming the absolute title to the cotton. The true and correct rule governing the case in point is set out in the decision of the case of Smith v. Boyle, 92 N.W. 1018. In this case the court held that "A tenant does not forfeit his property to the landlord by neglecting to remove it within a reasonable time and such a rule would be wholly untenable."

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