Reily v. Carter
| Decision Date | 18 April 1898 |
| Citation | 75 Miss. 798,23 So. 435 |
| Court | Mississippi Supreme Court |
| Parties | J. D. REILY v. J. R. CARTER |
March 1898
FROM the circuit court of Wilkinson county HON. W. P. CASSIDY Judge.
All facts involved in the controlling question appear in the opinion of the court.
Judgment reversed and cause remanded.
Bramlett & Tucker, for appellant.
In the court below, counsel for appellee cited authorities holding that purchasers under judgment at execution sale were not entitled to growing crops. There is a distinction between such cases and the one here. The judgment is only a lien upon the land, but a mortgage or deed of trust is an estate in the land. And, in the latter case, the purchaser is entitled to the crops. See 2 Minor's Institutes, 106-41 to 4K; 2 Jones on Mort., sec. 1658; Bank v. Walker, 3 Smed. & M., 409; code 1892, § 4472.
In Bank v. Walker, supra, the court holds, it would seem, that the mortgager is entitled to the severed crops at the time of the sale. While the testimony shows here that a small portion of the cotton was gathered at the time of the service of the Britton et al. writ of assistance, September 26, 1896, none was severed at the time of sale to Mayer, January 4, 1896, or sale to Britton et al., July 6, 1896, nor when those sales were confirmed, on March 16, 1896, and July 24, 1896, respectively. That question, then, is not in this case.
F. A. McLain, A. G. Shannon, and E. H. Ratcliffe, for appellee.
Reily actually got no possession under the Mayer deed of trust, and there was no way to put him in possession of an individual one-half interest by writ of assistance. Unless a writ of assistance could be executed by putting the tenant in common of the other half interest out of possession of some part of the land, then it is futile to talk about putting the tenant in common in possession as against his co-tenant. It is to be regretted that the sheriff's return does not inform us more fully as to how he did this. The facts abundantly show that be in no way disturbed those in the exclusive possession before the execution of the writ. It is further submitted that this writ of assistance would be void for another reason. It can only issue at suit of the purchaser or complainant at the foreclosure sale. Now, in both of these cases, the purchaser at the foreclosure sale received his deed in his own name, and subsequently sold to Reily, who was in no way a party to the foreclosure suit or sale, and had no right to the writ. If Reily may be supposed to have come into actual possession of an individual half interest, the tenants remaining undisturbed, Carter had a lien for his rent and supplies, upon which he was entitled to recover about the amount he did recover, independent of the transfer of the tenants, and even against Reily. 1 Washburn on Real Property, marginal page 420 [15]; 6 Am. & Eng. Enc. L., 492. If the foreclosure of the Mayer deed only carried a half interest, then Carter remained tenant in common until the end of his lease, and the decree and writ in the Britton case were simply void as to him, because he was, at the institution of the suit in that case, a tenant in possession, and was not made a party in that suit. Railway Co. v. Walker, 61 Miss. 481; Jones v. Hooper, 50 Miss. 515. He was willing to pay Reily the entire rent, $ 150, which Reily refused to accept, still the court paid him his rent and all expenses in the judgment, as there appears. As to the nine bales of cotton already gathered, he was simply a highhanded trespasser. Weathers v. Class, 54 Miss. 384-390. There is some conflict in the authorities as to a mortgagor's right to the crops growing at the foreclosure. As against an innocent tenant the purchaser ought only to have the rent. The law then being at least doubtful, that provision in the Britton deed which gave the mortgagor the right to possession and the rents, ought to count for at least a right to make a lease of agricultural lands for a year, and this would sustain our case, independent of the above points.
Argued orally by D. C. Bramlett, for appellant.
The first sale under the foreclosure of the first trust deed took place January 4, 1896, and was confirmed, deed being executed and delivered March 16, 1896. The second sale under the foreclosure of the second trust deed occurred July 6, 1896, and was confirmed, deed being executed and delivered July 24, 1896. The land, and the crops growing thereon and unsevered from the soil, passed to the purchaser at the foreclosure sale, from the date of the confirmation of that sale, July 24, 1896. If any part of the nine bales of cotton had been gathered prior to that date [which can be shown by testimony on another trial], such part would go to the appellee, the purchaser from the sublessees of the land. Prior to the confirmation of the sale, the trust deed was a mere security for the debt. After the confirmation, the purchaser at the foreclosure sale had an absolute title, in which the security had become merged; and the crops unsevered, then on the land, were as absolutely his as are the crops on any land the property of him who owns the land absolutely by full title.
The mortgagee who enters after condition broken, whether in pais , or after judgment in ejectment, on the legal title he has after condition broken, is, under our statute and decisions, simply a mortgagee in possession, under a legal title, it is true, but a legal title to be used simply to make his security available. The rents and profits which he gets, while so in possession, he receives as the property of the mortgagor, to be applied in liquidation of the mortgagor's debt to him. Buck v. Payne , 52 Miss. 271; § 2449, code 1892, with citations. Even if the mortgagee, after condition broken, secures merely a decree of foreclosure, that decree does not, proprio vigore , change the above rule. Wathen v. Glass , 54 Miss. 382; Allen v. Elderkin , 62 Wis. 627, at p. 628 . But after the deed has been delivered, and foreclosure sale has been confirmed, the mortgagee claims no longer under the mortgage, as a mortgagee, having a mere security for his debt, and no estate in the land, but he claims, as absolute owner, under a confirmed sale and deed, having the whole estate in the land, and all the unsevered crops as part of the land. This is the true doctrine, clearly announced in the following decisions, from states which treat mortgages, as we do, as conferring no estate [by their execution] in the land, but as giving mere liens or security for the debt: Beckman v. Sikes , 35 Kan. 120, at p. 122; 10 P. 592; Allen v. Elderkin , 62 Wis. 627; 22 N.W. 842; Downard v. Groff , 40 Iowa 597, at p. 598; Smith v. Hague , 25 Kan. 246, at p. 248; Gregory v. Rosenkrans , 72 Wis. 220; 39 N.W. 378 et seq.; Richards v. Knight , 78 Iowa 69; 42 N.W. 584; 2 Jones on Mort., sec. 1658; 1 Ping. Mort., secs. 880-884.
Of course, in states holding the view that the execution of the mortgage creates an estate in the land, the above rule is the law. Jones v. Thomas , 8 Blackf 428; Shepard v. Philbrick , 2 Denio 174; Lane v. King , 8 Wend. 585, 586, three decisions rendered at a time when, in New York and Indiana, the execution of the mortgage conferred an estate in the land. In Indiana the statute has been changed, and the mortgage put on the footing it had under our statute. See Heavilon v. Bank , ...
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