Wood v. Pace

• Decision Date: 10 October 1932
• Docket Number: 30133
• Citation: 143 So. 471,164 Miss. 187
• Court: Mississippi Supreme Court
• Parties: WOOD v. PACE et al

143 So. 471

164 Miss. 187

WOOD v. PACE et al

No. 30133

Supreme Court of Mississippi

October 10, 1932

(Division B.)

1. LANDLORD AND TENANT. Contract between landowner and manager and workman on farm held to create relation of landlord and tenant.

Contract employing manager and workman on farm required the workman to take charge of the farm, "care for it in a good workmanlike manner," and provided for the payment of one hundred dollars per month for his services, and twenty-five per cent. of the net proceeds from the sale of all crops grown on the land. The contract further provided that the workman was to make his compensation from the products of the farm, and could not look to the landowner for any difference.

2 MORTGAGES. Pecan nuts matured at time injunction, restraining tenant's gathering of crops, was sued out by mortgagees under trust deed being foreclosed, held personal property belonging to tenant (Code 1930, section 3468).

The pecan nuts matured at time injunction, restraining gathering of crops by tenant was sued out by mortgagees under trust deed were grown by cultivation, industry, and fertilizer of the tenant, and were still on the trees. The mortgagees had no interest in the realty, except a lien of the deed of trust, prior to the foreclosure sale.

Division B

APPEAL from chancery court of Harrison county.

HON. D M. RUSSELL, Chancellor.

Suit by J. V. Pace and others against W. R. Wood. Decree in favor of the complainants, and the defendant appeals. Reversed, and cause remanded.

Reversed and remanded.

J. F. Galloway, of Gulfport, for appellant.

Prior to the confirmation of 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 has become merged.

Riley v. Carter, 23 So. 435.

It does not vest the mortgagee with a right to the crop grown intermediate the giving of the mortgage and the foreclosure thereof. Until the latter event, the mortgagor is entitled to such crops with the same absolute right and dominion over them as if the mortgage did not exist.

8 R. C. L. 362.

It was the rule in this state prior to the Code of 1892, in line with the old common-law rule, that after foreclosure the purchaser had absolute title to the land, and to the crops unsevered thereon. That they were as absolutely his as crops grown upon his own land by full title.

The Legislature enacted Section 4472, of the Code of 1892, which has been brought forward in all subsequent Codes and is now Section 3468 of the Code of 1930, with the evident purpose of giving to the producer of crops the benefits of his labors, after foreclosure.

This wholesome statute happily changes the rule in this state, and gives a mortgagor who has a crop growing or planted when the foreclosure suit is begun, the right to such crops, upon the payment or tender of reasonable compensation for the use of the land, which amount the court may adjudge. It is a most beneficial statute, which will prevent much injustice in the future.

Riley v. Carter, 23 So. 437.

It was the rule at common law that a purchase of land at a foreclosure sale under a mortgage, on confirmation of the sale obtained a good title to all the crops on the land that was unreserved. In the first place, the rule has been changed by our statute, and in the second place the common law principle had no application to a conveyance of the land by a landlord where his interest in the crops had been fixed by a contract with his tenants.

Reynolds v. Polk, 109 So. 698, 144 Miss. 223; Parks v. Kline, 79 So. 81, 118 Miss. 119.

Purchaser at mortgage foreclosure sale of land, previously rented by mortgagor, and planted and cultivated by his lessee, is not entitled to rent reserved and assigned, and thereafter, falling due, but only to reasonable rental for subsequent use of the land.

Joyner v. LeFlore Grocery Co., 110 So. 857, 145 Miss. 31.

Since fruits of trees, such as peaches, apples, and other fruits, depend so much upon yearly cultivation and labor, including spraying for insects which attack and destroy the fruit, the yearly product of such perennial plants and trees are considered as chattels, while the tree itself is regarded as part of the realty.

Summerlin v. Orange Shores, Inc., 122 So. 508.

It cannot be denied that when the grain is cut it ceases to be a part of the realty. There is no reason why the act of cutting should change the property in the grain. We think the ownership of the grain should be determined by its condition (its maturity), not by the act of cutting, which cannot be done as soon as it is demanded by its condition. We conclude that the reason the grain was mature and uncut was because the defendant was unable to do the work. Having sown in peace, and in a just belief that he could rightfully reap, we think he should have been permitted to do so.

Opperman v. Littlejohn, 54 So. 77, 98 Miss. 636; Hetch v. Dettman, 56 Iowa 679, 7 N.W. 495, 10 N.W. 241, 41 Am. Rep. 131; Clark v. Strohbeen, 181 N.W. 430, 13 A.L.R. 1423; Richards v. Knight, 78 Iowa 69, 4 L.R.A. 453.

Growing crops planted by the owner of the soil constitute a part of the realty, but if planted by a tenant who holds under the owner of the soil, and the same are fit for harvesting, or by one whose tenancy is for an uncertain period of time, annual crops are regarded as personal property, liable to become part of the realty, if the tenant voluntarily abandons or forfeits possession of the premises.

Washburn on Real Property, 4, 5.

A conveyance of land, either by voluntary deed or judicial sale, without reservation, carries all growing crops with the title to the land. This rule only applies to crops which are immature and have not ceased to draw nutriment from the soil at the time of the sale, and is not applicable to crops that are ripe and ready for harvest. This distinction has been carefully recognized in all the cases where the subject was considered. When the crop matures they can no longer be regarded as a part of the realty, and hence do not pass to the purchaser of the land.

First National Bank v. Beegle, 52 Kan. 709, 39 Am. St. Rep. 365.

The general principles for measurement of damages ordinarily apply in actions for wrongfully suing out injunction; and the damages allowed are those which are the actual, natural and approximate result of the wrong committed.

Osage Oil Co. v. Chandler, 280, F. 848, 29 L.R.A. 720.

It is undoubtedly true that a suit may be maintained upon a partial dissolution of an injunction, for the recovery of such damages as was sustained by reason of its being sued out, to the extent that the same was wrongful.

Penny v. Holberg, 53 Miss. 567.

The majority of the cases in passing on the question whether a partial dissolution of an injunction breaches the injunction bond hold that a final decree dissolving an injunction in part, is a breach of the injunction bond, and renders the sureties liable thereon for such wrongs as have been sustained.

Smith v. Mutual Co., 102 Ala. 282, 14 So. 625; Rice v. Cook, 92 Cal. 144, 28 P. 219; Walker v. Prichard, 135 Ill. 103, 11 L.R.A. 577, 25 N.E. 573; Ford v. Loomis, 62 Iowa 586, 16 N.W. 193; Wabash R. R. Co. v. McCabe, 47 Mo.App. 346; Harter v. Westcott, 155 N.Y. 211, 49 N.E. 676; Davis v. Champion Co., 175 N.C. 25, 94 S.E. 671.

J. L. Taylor and Mize, Mize & Thompson, of Gulfport, for appellees.

The pecans on the trees were a part of the realty, and being a part of the realty it is too obvious and manifest that the appellees had the right to sue out an injunction to prevent damage to the realty.

But after the deed has been delivered and foreclosure sale confirmed, the mortgagee claims no more under the mortgage as a mortgage, 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.

Riley v. Carter, 75 Miss. 798.

Crops or fruit growing on trees whether regarded as fructus naturales or fructus industriales are in general parts of the realty, and, unless reserved, go with the realty in its transfer. But by the acts and intention of an owner of land containing bearing fruit trees, the growing fruit may be converted into personalty for the purpose of sale.

Simmons v. Williford, 53 So. 452.

The pecans were not such a crop as cotton or corn, but they were a part of the realty because the tree is a part of the realty.

Under the contract, the pecans did not belong to Wood and he elected to stand on the contract but he was only entitled to twenty-five per cent of the net proceeds; and under the decree of the court received approximately fifty per cent of the gross proceeds.

Wood was to gather said crops and market them, and furnish all labor in connection therewith, but under the order of the court the labor was furnished and paid for out of the proceeds of the pecans other than the 2500 pounds which were awarded to appellant.

It is undisputed that Wood knew of the deed of trust on the property and the deed of trust was a prior lien.

Griffith et el. v. Hulion, 107 So. 354.

OPINION

Ethridge, P. J.

On October 28, 1931, the appellees secured a writ of injunction, without notice or hearing, restraining the appellant, Wood, from gathering a crop of pecans which he had grown on Myrtle Grove farm in Harrison county, Mississippi, during the year 1931.

The appellees charged, in their petition for the injunction, that they were the owners and holders of a lien on said Myrtle Grove farm secured by a trust deed, which was then being foreclosed by the trustee, and that the property was to be sold on November 2, 1931; and...