Zeigler v. Citizens' Bank of Venus

• Decision Date: 14 February 1935
• Docket Number: No. 1568.,1568.
• Citation: 79 S.W.2d 662
• Parties: ZEIGLER v. CITIZENS' BANK OF VENUS.
• Court: Texas Court of Appeals

79 S.W.2d 662

ZEIGLER v. CITIZENS' BANK OF VENUS.

No. 1568.

Court of Civil Appeals of Texas. Waco.

February 14, 1935.

Rehearing Denied March 7, 1935.

Appeal from Johnson County Court; T. E. Darcy, Judge.

Suit by the Citizens' Bank of Venus against certain parties to recover the landlord's share of the crops made on the land by the defendants, in which suit Mrs. J. P. Zeigler intervened and claimed such rents under an assignment. The rents were deposited with the clerk of court, and, from a judgment that plaintiff was entitled to the rents, intervener appeals.

Affirmed.

R. A. Kilpatrick, of Cleburne, and Lem Wray, of Waxahachie, for appellant.

Irwin T. Ward, of Cleburne, for appellee.

ALEXANDER, Justice.

In 1931 B. C. Kelly purchased from one Barnes a tract of land in Johnson county, and as a part of the consideration executed and delivered to the Citizens' Bank of Venus a note secured by a vendor's lien on said land. Presumably the bank advanced a part of the funds necessary to purchase said land. At the same time Kelly executed a deed of trust on said land to secure the payment of said note. Both the deed and deed of trust were promptly recorded. Thereafter, in October 1932, Kelly, by parol agreement, rented said land to tenants for the year 1933 for a share of the crop, on the usual one-third and one-fourth basis. In November, 1932, Kelly, for a valuable consideration and by a written bill of sale, assigned to Mrs. J. P. Zeigler the rents contracted to be delivered to him by said tenants for the use of said land for the year 1933. During the same month, Kelly defaulted in his payments to the bank, and thereafter, on February 7, 1933, the trustee named in said deed of trust, after due notice, sold said land under the powers given in said deed of trust, and the bank became the purchaser. The tenants, to whom Kelly rented said land for the year 1933, broke the land and prepared same for planting prior to the sale under the deed of trust, but did not plant any crops thereon until after said sale. Said tenants remained on the land and made a crop for the year 1933. The bank brought this suit against said tenants to recover the landlord's share of the crops made on said land for the year 1933. Mrs. Zeigler intervened and claimed said rents under her assignment from Kelly. The tenants, by agreement of the parties, deposited the rents with the clerk of the court, subject to the outcome of this suit, and disclaimed further interest therein. The trial court in a trial without a jury found that the bank was entitled to recover said rents. Mrs. Zeigler appealed.

Simplified, the material question to be determined is whether Mrs. Zeigler is entitled to the rents off of said land for the year 1933, she having purchased the right thereto from Kelly at a time when he was the owner of the land but after he had mortgaged the land to the bank; or whether the bank is entitled to said rents, it having foreclosed its lien and become the owner of the land before any of the crops had been planted, but after the rental contract had been made, and after an assignment of the rents to Mrs. Zeigler.

It seems to be a well-established rule in this state that growing crops may be constructively severed from the land by a sale thereof, and that, if the owner of encumbered land sells his interest in crops growing thereon prior to a consummation of the foreclosure proceedings, the purchaser will acquire good title to such crops. Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284; Bowyer v. Beardon, 116 Tex. 337, 291 S. W. 219; Bowers v. Bryant-Link Co. (Tex. Com. App.) 15 S.W.(2d) 598; Roth v. Connor (Tex. Civ. App.) 25 S.W.(2d) 246; Red River Nat. Bank v. Summers (Tex. Civ. App.) 30 S.W.(2d) 726; McKinney v. Williams (Tex. Civ. App.) 45 S. W. 335; Brown v. Leath, 17 Tex. Civ. App. 262, 42 S. W. 655, 44 S. W. 42; 29 Tex. Jur. 1002; 11 C. J. 444; 41 C. J. 624, 1000; 19 R. C. L. 628.

It is also well settled that such owner may sell his interest in crops yet to be planted upon such encumbered land, and that, if such crops actually come into existence before such owner's interest in the land is divested by foreclosure proceedings, the purchaser will acquire a good title to the owner's interest in such crops. Richardson v. Washington, 88 Tex. 339, 31 S. W. 614; Millingar v. Foster (Tex. Com. App.) 17 S.W.(2d) 768; Security Mortgage & Trust Co. v. Gill, 8 Tex. Civ. App. 358, 27 S. W. 835; Lombardi v. Shero, 14 Tex. Civ. App. 594, 37 S. W. 613, 971; Sanger Bros. v. Hunsucker (Tex. Civ. App.) 212 S. W. 514; South Texas Implement & Machine Co. v. Anahuac Canal Co. (Tex. Com. App.) 280 S. W. 521; 9 Tex. Jur. 121.

This latter rule is based on the familiar equitable doctrine that, if one sells property which he does not then own but afterwards acquires, he will be held to have acquired such title for the use and benefit of his vendee, and as a consequence equity will pass the title on to his vendee. In such case the vendor is estopped to claim title to such after-acquired property as against his vendee. Richardson v....