The opinion
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Argued and submitted on rebearing October 27; former opinion adhered to January 5, 1932.
On Rehearing
(6 P.(2d) 242)
RAND, J.
Upon the reargument of this cause, it was again insisted that, since it is a well-established rule of law that the title to harvested crops follows the actual possession and not the right to possession, the court erred in holding that Chambers, the vendee, under a contract- for. the purchase of a large number of cattle and horses as well as the land on which the hay had been harvested and stacked, had no attachable interest in the hay. • ■
As we attempted to point out in our former opinion, Chambers had been let into possession under a contract for the sale of the live stock and of the land and had obligated himself to cut- and stack the hay and feed the same to the live stock. In fact, the very- existence of the live stock depended upon the use of the hay for feeding purposes during the coming winter. Chambers had never made any substantial payment under his contract. He was in default practically for the entire amount of the principal and interest, a large part of which was then due and unpaid.
There was a dispute in the testimony whether, at the time the hay was cut and stacked, the contract had been rescinded and, if so, whether Chambers was a mere employee or was still acting under the contract. If Chambers was acting as an employee while engaged in putting up the hay, he could have no interest in it, while if the contract had not been rescinded, he was in default and it could be terminated any time by the vendor. In order to dispose of the ease, we gave Chambers the benefit of the doubt and assumed that at the time the hay was stacked he was not acting as an
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employee but under the contract and held that, upon that theory, he had no interest in the hay which he could make the subject of sale or which could be attached by one of his creditors. As we viewed the case then and now, the hay was as much the subject of the contract as was the live stock and the land itself. As was said by Lord Chelmsford in
Shaw v. Foster,
L. R. 5 H. L. 321, copying from the note in 3 Pomeroy, Eq. Jurisp. (3d Ed.), to section 1260:
“According to the well-known rule in equity, when the contract for sale was signed by the parties, Sir W. Poster (the vendor) became a trustee of the estate for Pooley (the vendee), and Pooley a trustee of the purchase-money for Sir W. Poster.”
Lord Cairns said (p. 338):
“Under these circumstances, I apprehend there cannot be the slightest doubt of the relation subsisting in the eye of a court of equity between the vendor and the purchaser. The vendor was a trustee of this property for the purchaser; the purchaser was the real beneficial owner, in the eye of a court of equity, of the property, subject only to this observation, that the vendor, whom I have called the trustee, was not a mere dormant trustee, — he was a trustee having a personal and substantial interest in the property, a right to protect that interest, and an active right to assert that interest if anything should be done in derogation of it. The relation, therefore, of trustee and. cestui que trust subsided, but subsided subject to the paramount right of the vendor and trustee to protect his own interest as a vendor of the property.”
Quoting further from the note:
“That interest, Sir George Jessel says, in a subsequent case, is synonymous with the ordinary term, the ‘vendor’s lien’ or charge. Lord O’Hagan said (p. 349): ‘By the contract of sale the vendor, in the view of the court of equity, disposes of his right over the
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estate, and on the execution of the contract he becomes constructively a trustee for the vendee, who is thereupon, on the other side, bound by a trust for the payment of the purchase-money’.”
Hence, under this view, whatever interest Chambers may have had in the hay it was subject, like the cattle and the land, to the charge of the vendor for. the unpaid purchase money and it being a mere equitable interest, it was not subject to attachment. Again, under the contract, even if Chambers had not been in default, he was bound to feed the hay to the cattle or provide other hay in lieu of it. Hence, under either view, he had no ownership of the hay except for the purpose of performing his contract and he had no interest in it which was subject to attachment by one of his creditors.
As we view the case now, the doctrine of emblements has no application and the case of
Seivers v. Brown,
34 Or. 454 ( 56 P. 171 , 45 L. R. A. 642), was upon an entirely different state of facts and is not in point. All that was said in our former opinion about emblements was said because that was the principal point relied upon by the parties in their arguments upon the first hearing.
For these reasons and for those formerly stated, our former opinion will be adhered to.
Rossman and Campbell, JJ., absent.