Morton v. Union Central Life Ins. Co. , 80 Mont. 593 ( 1927 )

We dissent. In this case we are of opinion that the decision of this court in the case of Union Central Life Ins. Co. v.Jensen, 74 Mont. 70, 237 P. 518, is controlling and conclusive as to the respective rights of the parties on this appeal. Here the mortgagee, upon the mortgagor's default, by virtue of the express terms of the contract (the mortgage), upon its election, became entitled to additional security for the debt, namely, immediate possession of the mortgaged premises and "to receive the rents, issues, and profits thereof." At the time the mortgagee made demand for possession of the premises the crops were unsevered, and notwithstanding such demand, and legal proceedings to secure possession of the land, the tenant remained in possession until a month later, when he harvested the crops and removed them to the elevator, in utter disregard of the mortgagee's rights. In our opinion, the mortgagee pursued the only course open to it in the assertion and protection of its rights under the contract, and the tenant's wrongful detention of the landlord's share of the crop constituted him an involuntary trustee thereof for the use and benefit of the mortgagee. (Sec. 7887, Rev. Codes 1921.)

The conclusion reached by the majority disregards the proper application of the maxim: "That which ought to have been done is regarded as done, in favor of him to whom, and against him from whom, performance is due." Under its contract, the mortgagee should not be compelled to resort to force and arms in order to reduce to possession the landlord's share of the crop grown upon the land. There must be, and there is, a legal remedy. "A mortgage is a lien upon everything that would pass by a grant of the property" (sec. 8251, Rev. Codes 1921), and "the transfer of a thing transfers all its incidents unless expressly excepted" (Id., sec. 6867).

So long as a crop remains physically unsevered from the land, it "partakes of the nature of the realty as between the mortgagor and mortgagee" of the land, and "forms part of the latter's security for the payment of the debt, and all persons dealing with the mortgagor in respect to it whilst it remains actually attached to the freehold deal subject to all the rights of the mortgagee unimpaired and unaffected." (Wootton v. White,90 Md. 64, 78 Am. St. Rep. 425, 44 A. 1026.)

"Crops of wheat and oats, while growing, are of necessity physically attached to land and accessory to its enjoyment, and for that reason and in that sense, and for certain purposes, are in a variety of circumstances incidental and accessory to land; for example, where the owner of land sells it, with right of immediate possession in the purchaser, and without reservation of the emblements then standing on the land, and the purchaser takes possession before severance, title passes to the emblements as well as to the land; the reason, as it should seem, being that the grantor's intrusion by re-entry, and his cultivating and harvesting of the crops, would be both a breach of the covenant of quiet enjoyment and a trespass upon and disturbance of the purchaser's possession, and in that event `the anomalous situation would be presented of the ownership of one of personal property upon the land of another without right in the owner to enter and take it.' (Herron v. Herron, 47 Ohio St. 544, 21 Am. St. Rep. 854, 9 L.R.A. 667, 25 N.E. 420.) Whatever the reason for the rule may be, the law on this subject is well settled." (Power Merc. Co. v. Moore Merc. Co., 55 Mont. 406,177 P. 406.)

In the case of Isbell v. Slette, 52 Mont. 156,155 P. 503, this court correctly held that "a chattel mortgage upon crops thereafter to be planted cannot operate as an encumbrance upon the land where the crops are to be grown, and therefore, in the present instance, Geo. D. Isbell, after the execution of this mortgage and before any crops were planted, might have sold his homestead to a third party, and the purchaser could not have been held bound by the mortgage, and a lessee is in no worse situation. This is the rule followed by the great weight of authority, and commends itself to our judgment. (Simmons v.Anderson, 44 Minn. 487, 47 N.W. 52; McMaster v. Emerson,109 Iowa, 284, 80 N.W. 389; Reeves Co. v. Sheets,16 Okla. 342, 82 P. 487; Jones on Chattel Mortgages, 5th ed., sec. 143a.)"

"A mortgagor, compelled to surrender the estate, is not, like a tenant at will, entitled to the emblements, though produced by the mortgagor's labor. The mortgagee may evict him without notice, and retain the emblements. A lessee holding under the mortgagor by a lease granted subsequently to the mortgage, and without the mortgagee's concurrence, has no greater rights than the mortgagor, and when evicted by the paramount title of the mortgagee, as he may be without notice, he cannot retain the emblements. A purchaser at a foreclosure sale is entitled to the crops growing at the time of the sale, and may maintain trespass against the mortgagor or his lessee for taking and carrying them away." (Jones on Mortgages, 2d ed., sec. 698.)

We are of opinion that the mortgagee's cross-complaint states a cause of action and that the judgment should be reversed.