Salmon v. Fewell
| Decision Date | 23 March 1885 |
| Citation | 17 Mo.App. 118 |
| Parties | G. Y. SALMON, Respondent, v. H. P. FEWELL, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Henry Circuit Court, HON. J. B. GANTT, Judge.
Affirmed.
Statement of case by the court.
This is an action of replevin for the recovery of the possession of two thousand bushels of corn matured on the stalk in the field, on certain described premises. The case is tried upon the following agreed statement of facts.
1. That on the 30th day of June, 1869, one David Moore was the owner of the land on which the crop of corn in controversy was grown. That on said day he and his wife executed a mortgage to the plaintiff on said land, to secure the payment of several promissory notes, owing by said David Moore to plaintiff. That said notes remained unpaid, and being past due the plaintiff, on the 26th day of November, 1880, filed his petition in the circuit court to foreclose said mortgage. That judgment of foreclosure was rendered therein at the April term, 1881, of said court. That under a special execution issued therefrom, the said premises were sold by the sheriff of said county on the 10th day of August, 1881 during a session of said court. That at said sale the plaintiff became the purchaser of said premises, and on the 13th of said month received a deed from the sheriff which was duly filed for record on the 31st day of August, 1881, in the recorder's office of the proper county.
2. That on or about the 3rd day of March, 1881, said Moore leased said land to the defendant, his son-in-law, for one year therefrom, without the concurrence of the plaintiff. That the defendant then paid said Moore said rent. That at the time of the making of said contract of rent, the defendant had notice of the existence of said mortgage, and that the same was past due, and that the said suit for the foreclosure thereof was pending.
3. That on or about the 17th day of August, 1881, after said sale and delivery of the sheriff's deed as aforesaid, the plaintiff served written notice on the defendant, notifying him of his said purchase of said land under said mortgage and decree of foreclosure, and notifying him not to move or dispose of any of the growing crop then standing or growing on said land, and also demanding possession of the crop of corn then standing on said land, which defendant refused to let the plaintiff have. That on the 10th day of October 1881, while said crop of corn was still standing on said land matured, the plaintiff brought this action of replevin and the same was afterwards, on the 22d day of November, 1881 taken possession of by the sheriff under the order or writ of replevin issued on said petition and turned over to the plaintiff who retains the possession of the proceeds thereof.
4. The crop of corn aforesaid was planted and cultivated by defendant under his lease of said premises, which premises he continued to hold as said lessee up to the time of said replevin suit.
5. In the advertisement of sale, no mention was made of any crops, nor was there any mention thereof made by the sheriff at the time of the sale.
At the time of the purchase plaintiff knew that defendant was in possession as tenant of the mortgageor, and no action was commenced by plaintiff to recover the possession after the foreclosure sale.
Defendant then offered evidence tending to show that the crop was mature at the time of the sale, and plaintiff offered evidence tending to show that the same was not mature at the time of the sale. The court found that said crop at the time of the sale was not mature.
The court found for plaintiff, and the defendant has brought the case here by appeal.
The defendant asks a reversal for the following reasons:
1st. Because the crop did not pass by the foreclosure sale.
2nd. Because replevin will not lie for ungathered corn standing in the field.
M. A. FYKE, for the appellant.
I. The principal question in this case is, whether the purchaser, at the foreclosure sale of the land upon which the crop was grown, by his purchase acquired title to the crop. Appellant contends that the crop did not pass by the sale.-- Adams v. Leip, 71 Mo. 597; Garth v. Caldwell, 72 Mo. 622; White v. Wear, 4 Mo. Appeal Reports, 341.
II. No demand was made for the crop until after the sale, and no demand was made for possession prior to the commencement of the replevin suit.-- Kennett v. Plummer, 28 Mo. 142; Gilman v. Telegraph Co., 91 U.S. 603.
III. The supreme court of Iowa makes a distinction between mature crops and crops immature (Hecht v. Dettman, 56 Iowa 679), holding that the former (mature) are personal chattels and do not pass, and that the latter (immature) are part of the realty and therefore pass. No such distinction can be made under the decision of Garth v. Caldwell (72 Mo. 622).
IV. The next question is, will replevin lie for ungathered corn standing in the field? The supreme court of this state, in Jones v. Dodge (61 Mo. 368), seemed to decide that replevin was not maintainable in such cases.
F. E. SAVAGE for the respondent.
I. Fewell was lessee of Moore, the mortgageor. As such lessee he stood in the same relation to the premises as if the mortgageor had planted the crop. He took it subject to all the rights of the mortgagee, and with all the burdens which attached to the lands in the hands of the mortgageor.--Jones on Mortgages, 3rd ed. sect. 780; Downard v. Groff, 40 Iowa 597.
II. The court found that at the time of the foreclosure of the mortgage, the crop was not mature, but was growing as appurtenant to the soil. As such it passed as part of freehold to plaintiff.--Cases above; Shepherd v. Phillbrick, 2 Denio 174; Curry v. Schmidt, 54 Mo. 515.
III. Replevin will lie in this case. This was the action resorted to and sustained in the following cases: Scriven v. Moote, 36 Mich. 65; Jones v. Thomas, 8 Black 426; Anderson v. Strauss, 98 Illinois 435; Hecht v. Dettman, 56 Iowa 679; Rowell v. Klein, 44 Indiana 291; Daniels v. Pond, 21 Pick. 371.
IV. The case of Garth v. Caldwell (72 Mo. 622) virtually overruled Jones v. Dodge (61 Mo. 368), and holds that replevin will lie to recover the crop.
The rule " that until the mortgagee enters for breach of condition the mortgageor owns the estate and he has a right to lease and collect rent as owner so long as he is alowed to remain in possession" (White v. Wear, 4 Mo.App. Rep. 341), relied upon by defendant is not a new rule, and must be considered in connection with this further statement of it in Kennett v. Plummer (28 Mo. 146): " of course he (the mortgageor) cannot impair the rights of the mortgagee, and every person taking under him will hold subject to the mortgage and to all the rights of the mortgagee." So in this case until foreclosure the mortgageor had the right to lease the land, but only to lease it subject to the mortgage.
To further support the first proposition the defendant has cited the following cases: Adams v. Leip (71 Mo. 597); Jenkins v. McCoy (50 Mo. 349); Harris v. Turner et al. (46 Mo. 438); Morgan v. Briggs (46 Mo 66); Garth v. Caldwell (72 Mo. 622); these cases are not in point. In Adams v. Leip, the suit was for the recovery of the possession of 1205 shocks of wheat, which plaintiff claimed by virtue of his ownership of the land on which it was grown. The crop had been harvested and severed from the soil. In Jenkins v. McCoy, the plaintiff had purchased a farm of one Fisher, and upon it at the time of the sale was a growing crop planted by defendant, who afterwards removed it, and the suit was to recover the value of the corn upon the assumption that McCoy was a trespasser and had no right in the crop so raised. The court held: " I know of no principle that would give him (plaintiff) a title to what had been raised and removed, so as to make defendant liable not for the use of the property, but for the value of the crop." * * * In Morgan v. Briggs, the suit was a replevin suit for the recovery of the possession of two hundred bushels of wheat. The finding for the defendant was sustained on the ground that he had purchased the wheat from one Foster, who had had possession of the plaintiff's premises on which the wheat was grown for some two years, covering the period of the growing of the wheat, as the licensee of plaintiff, and that the wheat crop had been put in by Foster as such licensee, with the plaintiff's implied assent and approval, although the evidence failed to show the existence of a lease from the plaintiff to Foster. In this case also the crop had been harvested and severed from the soil. In Harris v. Turner, et al., the action was an action of forcible entry and detainer, and it is simply decided therein " if the plaintiff was in peaceable possession whether rightfully or wrongfully, the defendants had no right to dispossess him." *...
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