recognizing that unless the crops belong to a tenant, “[a] real-estate mortgage [given by the landowner] is not only a lien upon the land, but also upon the annual crops growing thereon”
How later courts described this case
- recognizing that unless the crops belong to a tenant, “[a] real-estate mortgage [given by the landowner] is not only a lien upon the land, but also upon the annual crops growing thereon”
Written by the judges who cited it.
The opinion
Decided 15 August, 1900.
On Petition for Rehearing.
For petitioner there was a brief over the name of Mr. Chas. A. Cogswell.
Mr. Justice Moore
delivered the opinion of the court.
2. At the rehearing of this case it was insisted that the court, in the former opinion, overlooked the fact that, when the premises were sold to the plaintiff, Hall’.s tenant was in possession thereof under a lease which did not terminate until three months thereafter; and, this being so, it is argued that plaintiff was not entitled to *477 the possession of the land, but, in lieu thereof, to receive from such tenant the rents or the value of the use and occupation of the premises from the time of such sale until the termination of the lease, and, it having been stipulated that the wheat hypothecated by Hall to the Little Klamath Water Ditch Company was due him at the time he executed the chattel mortgage, the judgment should have been affirmed. The case was tried by the court without the intervention of a jury, upon a stipulation of facts to the effect that on November 16, 1894, John L. Hall, being the owner of certain lands in Klamath County, Oregon, gave a mortgage thereon to the plaintiff, who, in June, 1896, secured a decree foreclosing the same, at which time the grain in question was growing on the premises ; that on July 2, 1896, said land was levied upon by the sheriff of said county by virtue of an execution issued on said decree, of which fact the defendant had due notice ; that on July 31, 1896, Hall, who then held the legal title to said land, of which he was in the constructive possession by Eugene Hammond, his tenant, under a lease thereof which did not terminate until November 1, 1896, gave a chattel mortgage on all his share of the crop of grain growing on said land to said ditch company, to secure the sum of $355.50, payable October 1, 1896, which mortgage was' duly filed within the time prescribed by law; that on August 1, 1896, the land was sold upon said execution to plaintiff, who was let into the immediate possession thereof, at which time the grain in question was growing thereon ; that on October 9, 1896, the conditions of said chattel mortgage having been broken, the defendant, as president of the ditch company, against plaintiff’s protest, took and carried away from said land one hundred and thirty-three bushels of wheat, of the value of $78.30, which was the rental due Hall from Hammond under *478 . the lease; and that on October 17, 1896, the plaintiff secured and now holds the possession of said grain.
The statute, in prescribing the person who is entitled to the possession of real property upon a judicial sale thereof, provides that the purchaser, from the day of sale until a resale or redemption, and a redemptioner from the day of his redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed, unless the same be in the possession of a tenant holding under an unexpired lease, and in such case shall be entitled to receive from such tenant the rents or the value of the use and occupation thereof during the same period : Hill’s Ann. Laws, § 307. Tt is stipulated that the grain so mortgaged by Hall was rental due from Hammond under the lease. “The word ‘due,’” says Mr. Justice Ewing, in Scudder v. Scudder, 10 N. J. Law, 340, “has more than one signification, or is used on different occasions to express distinct ideas. At times it signifies a simple indebtedness, without reference to the time of payment. Debitum in preesenti, sohendum in fu turo.’ At other times it shows that the day of payment or render has passed.” In United States v. State Bank of North Carolina, 31 U. S. (6 Pet.) 29 , Mr. Justice Story, in defining the word “due,” says : “It is sometimes used to express the mere state of indebtedness, and then is an equivalent to ‘owed’ or ‘owing ;’ and it is sometimes used to express the fact that the debt has become payable.” In Carr v. Thompson, 67 Mo. 472 , it was held that the word “due” was improperly used for “owing.” As illustrating this definition, see, also, Leggett v. Bank, 25 Barb. 326 ; Allen v. Patterson, 7 N. Y. 476 ( 57 Am. Dec. 542 ). If it be assumed that the words “rental due,” as used in the stipulation, are synonymous with “rent accrued,” Hall could have entered and taken the quantity of wheat to which he was entitled, before it was harvested ; but, *479 as such a method of securing the proper quantity would have been impracticable, we think that the parties meant by the use of that term that the wheat so taken by the defendant was the quantity which was ascertained to be due Hall after the grain was harvested and threshed. Having reached the conclusion that the rent was not due Hall until after the grain was harvested, which occurred after plaintiff purchased the land, but before she was entitled to the possession thereof, the rent of the premises was due her, and not Hall; for the rule is well settled that when land is leased in consideration of a part of the crop that may be raised thereon, and the lease does not contain any stipulation as to when such share is payable, it is due when the crop is harvested, or within a reasonable time thereafter : Toler v. Seabrook, 39 Ga. 14 ; Lamberton v. Stouffer, 55 Pa. St. 284; Long v. Seavers, 103 Pa. St. 517; Brown v. Adams, 35 Tex. 447 . The rent thus reserved having accrued after the sale of the prem-. ises, the plaintiff was entitled to the same, and hence we are compelled to adhere to our former opinion.
Rehearing Denied.