Whiteside v. Morris
| Decision Date | 05 February 1924 |
| Docket Number | 35635 |
| Citation | 197 N.W. 56,197 Iowa 211 |
| Parties | H. W. WHITESIDE, Appellee, v. R. E. MORRIS et al., Appellees; COMMERCIAL SAVINGS BANK OF DES MOINES, Intervener, Appellant |
| Court | Iowa Supreme Court |
Appeal from Lucas District Court.--SENECA CORNELL, Judge.
THIS is an action to foreclose a real estate mortgage. The controversy is over the rent for the mortgaged premises represented in part by notes and in part by a share of the crop, between the plaintiff, claiming under the mortgage, and the intervener, claiming under an assignment of the lease and notes. From a decree in favor of plaintiff as to the crop and in favor of intervener as to the notes, intervener and plaintiff appeal.--Reversed on intervener's appeal affirmed on plaintiff's appeal.
Affirmed on plaintiff's appeal; reversed on intervener's appeal.
Lehmann, Seevers & Hurlburt, for appellant.
Stuart & Stuart, C. F. Wennerstrum, and Poston & Murrow, for appellees.
On March 1, 1920, the defendant R. E. Morris and wife executed a mortgage on certain real estate to secure their note for $ 7,000, due April 1, 1922, to the plaintiff and appellee, Whiteside. Thereafter, the defendant George Ammer became the owner of the land by a conveyance from one to whom Morris had conveyed it, and on March 31, 1922, acting by A. C. Capps as his agent, leased the land to the defendants Irwin Meyers and John J. Meyers by a written contract, for a term ending March 1, 1923, for a rental of $ 250, represented by two negotiable promissory notes of the lessees for $ 125 each, due respectively September 1st and January 1st following, and one half of all corn, oats, hay, and seed produced on the farm. On April 13, 1922, Ammer assigned his interest in the lease, and transferred the two rent notes to Capps for a valuable consideration, and on May 1, 1922, Capps assigned the lease and notes to the intervener bank as collateral security for a loan. On July 24, 1922, Whiteside filed his petition herein, alleging default in the payment of the $ 7,000 note, and asking judgment for the amount due thereon, a decree foreclosing the mortgage securing it, and the appointment of a receiver to take charge of and collect the rents arising from the land. On July 31, 1922, a receiver was appointed. The bank intervened, and claimed, by virtue of the assignment of the lease and notes from Ammer to Capps and Capps to it, to be a bona-fide holder of the notes and a purchaser of the landlord's share of the crop, without notice of appellant's claim under the mortgage. Upon a trial, the court below upheld intervener's claim to the notes, but found that the receiver was entitled to the landlord's share of the crop. From this order both intervener and the plaintiff appeal. The former, having first perfected its appeal, will be designated the appellant.
The appellee's mortgage was not filed or indexed as a chattel mortgage, and the record imparted no constructive notice that it covered the rents and profits arising from the mortgaged premises. Trulock v. Donahue, 76 Iowa 758, 40 N.W. 696. Chapter 246 of the Acts of the Thirty-Ninth General Assembly, while not in force at the date of the mortgage, is apparently intended to provide relief for such a situation. It is shown that neither Capps nor the appellant had any actual notice of the provision of the mortgage with reference to the rents and profits. So much, indeed, was found by the court below in sustaining appellant's claim to the notes; but as to the landlord's share of the crop it was held that the crops had not matured, and were in fact a part of the land at the time the mortgage debt matured and when the receiver was appointed; and for that reason the receiver's claim thereto was upheld.
It is, of course, true, as contended by appellee, that growing and immature crops are a part of the land, and pass under a conveyance of the land. But it is also true that the owner may, by his voluntary act, so far separate the growing crops from the soil as to pass title thereto, independent of his estate in the land. Strawhacker v. Ives, 114 Iowa 661, 87 N.W. 669. The assignment by Ammer to Capps of his, the landlord's interest in the crop growing or to be grown upon the land was good as between the parties, as was the assignment from Capps to appellant. Being good as between the parties, they are good as against all persons except such as have a superior or paramount right thereto. Lufkin v. Preston, 52 Iowa 235, 3 N.W. 58 and 57 Iowa 28.
Aside from the fact that the record of appellee's mortgage did not operate to give constructive notice of any claim to the crops by virtue of the mortgage, it becomes material to inquire just what rights the mortgage gave to the crops grown on the premises. The only provision of the mortgage referring to the rents and profits of the mortgaged premises is the following:
"And if suit is brought to foreclose this mortgage hereby authorize the court to appoint a receiver, for the benefit of the mortgage, of the rents issues and profits."
The rents and profits are in no other manner or respect pledged to the payment of the mortgage debt. While this provision doubtless amounted to a pledging of the rents and profits they are pledged only in case and when suit is brought to foreclose the mortgage. The rights of the mortgagee thereto did not arise until such action was brought. First Nat. Bank v. Security Tr. & Sav. Bank, 191 Iowa 842, 181 N.W. 402, and authorities there cited. In the cited case, the question arose between the holder of two real estate mortgages, in which...
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