
    Daniel Cassilly v. Samuel Rhodes.
    Where lands subject to a mortgage, are sold under a decree of foreclosure, the emblements of a lessee are protected, and do not pass to a purchaser under the decree.
    This was a Writ of Error, from the county of Stark, to reverse "the decision of the Supreme court, for misdirection of the jury at the trial.
    Rhodes brought a suit of trespass against Qassilly, for cutting and •carrying away his wheat; and the question made to the jury was, whose right to the crop was best.
    Pease mortgaged the premises to the State of Ohio, in 1837; in November, 1840, the sheriff sold them to Oassilly, under a decree of foreclosure and sale; and Oassilly took possession immediately, claiming the wheat in the ground, and giving notice of his claim at the administrator’s sale, in January, 1841. He afterwards harvested the wheat.
    After the mortgage, and before sale, Pease conveyed the premises to Folger, who leased to Myers. Prom April, 1840, Myers held the premises under a verbal lease until his death, in November, 1840, His interest in the wheat was, in January, 1841, sold, by the adminis'trator of his estate, to Rhodes ; *and Rhodes should recover in [89 this suit, unless the purchaser acquired a title to the growing crop, as well as the land, by the sale under the decree.
    The court, at the trial, instructed the jury that the plaintiff should recover ; and this writ of error is brought to review that opinion.
    S. Meyer, for plaintiff in error.
    There are important questions to be settled in this cause. What are the rights of a lessee for years, who comes in after an existing mortgage ? Is he entitled to the emblements as against the mortgaged or purchaser on foreclosure and sale of the mortgaged premises ? How is he affected as an incumbrancer, pendente lite ¶
    
    Let us consider these questions in their order. At common law, a lease, made after the date of the mortgage, is ineffective as against the mortgagee, and subject to all the circumstances of the mortgage ; and the mortgagee may evict the lessee by ejectment, without notice to quit. Keech v. Hall, Doughlass, 21 ; Thunder v. Belcher, 3 East. 449 ; 1 Hillard’s Abridgt. 279 ; 1 Powell on Mortgages, 159, 160, 161. That the lessee of mortgaged premises takes an interest subject to be defeated by the mortgagee, by ejectment or foreclosure, is a proposition well established by English as well as American authorities. This principle is, indeed, inseparable from the nature of the mortgage security. If a subsequent lease were not subject to the mortgage, it would put an end to the mortgage lien. Did not the interest of the lessee determine and cease on foreclosure or ejectment by the mortgagee, the mortgagor might effectually destroy the mortgage by a lease for a large number of years. For it is evident, if the mortgagor can make a lease to extend beyond that period, there is nothing to prevent him from granting a term for ninety nine years, or for centuries.
    This court has always held, that when the mortgage deed becomes absolute at law, by the nonperformance of the condition, the mortgagee may recover possession of the premises *against the mortgagor, [90 Why should not this hold equally good against the lessee of the mortgagor ? Will it be said that the mortgagor can convey to his lessee a greater estate or more rights than he himself possesses ?
    It will not be denied that the mortgagor’s interest in the premises was determined by the sale on foreclosure, and possession taken by the purchaser, in the case at bar. With what right can it then be claimed, that the estate or interest of his lessee was not also determined by the same acts ?
    But it has been said, (and so the court laid down the law to the jury, in the case at bar, as appears from the bill of exceptions ) that though the lessee’s estate was determined by the sale on foreclosure, yet he is entitled to the growing crops. '
    By what process of reasoning this conclusion is arrived at is not easily perceived. It is admitted, that the lessee’s estate, or possessory interest in the premises, is determined by the purchaser on foreclosure, recovering possession, and also, that the latter is entitled to the possession; yet it is claimed, in order to sustain this case, that the lessee is not only entitled to the emblements, but that he may also maintain trespass guare clausum fregit against him — the lawful possessor of the close.
    First, as to the lessee’s right to the emblements.
    It will scarcely be contended, that the mortgagor would be entitled to emblements, as against the mortgagee or purchaser on foreclosure. It has invariably been held by the courts in this country, and in England, that he is not; and perhaps no adjudicated ease can be found to the contrary. And one of the reasons given by the books, why the mortgagor is not entitled to the emblements, is, that the crop, as well as the land, is a surety for the debt. 1 Powell on Mortgages, 156, and 162; 9 Johns. 108; 10 Ibid. 360; 4 Ibid. 424; 1 Hayw. 17. 1 Glyn. and Jam. 218; and Hodgson v. Gascoigne, 5 Barn, and Ald. 88. In which latter case it was held that after judgment in ejectment at the suit of the landlord, the value of the growing crops, though sold or seized in execution, might be recovered in an action for mesne profits, 91] if the sale or ^execution were subsequent to the day of demise laid in the declaration.
    The reason given in the English cases is a sound one, though its force may be weakened here by the operation of our appraisement laws. But there is a reason more obvious and forcible, alike applicable here and in other countries.
    It is in the nature of the mortgage security that, on forfeiture, the mortgagee is entitled to the possession of the mortgaged premises, which he may recover by ejectment or foreclosure. But if in such ease the mortgagor were entitled to the growing crops, the mortgagee’s right to possession would, in effect, be rendered nugatory for a long period. In the ease at bar, for instance, the crop was in part put out, according to the testimony, the very week of the sale, and but two weeks before the purchaser’s entry. The purchaser’s right of possession would, therefore, be rendered ineffective until after the succeeding harvest; a period of almost an entire year.
    
      It is in vain to say that the mortgagee or purchaser, in such ease is entitled to the possession of the premises, if he has no beneficial interest therein, and may be treated as a trespasser by the mortgagor for entering on the premises.
    And are not these reasons equally obvious and striking in the case of the lessee of the mortgagor ? Is the mortgagee or purchaser on foreclosure any the less entitled to the beneficial possession of the premises, because the mortgagor may have substituted a lessee in his stead ? Or, is he any the more a trespasser on entering the premises, because the mortgagor’s lessee has put out the crop, instead ot the mortgagor ?
    It is difficult to perceive why these reasons should not be equally operative against the mortgagor’s lessee as they are against himself, or why the lessee should be entitled to the emblements when the mortgagor is not. In England, it is held that the lessee is no more-entitled to the emblements in such eases than the mortgagor. 1 Powell on Mortgages, 162, 163; Com. Dig., Title Biens, G. 2; Co. Litt. 55, c.; Mo. 24 ; Bro. Emb. 10, 12, 17, 20 ; Dyer, 31, c. ; Dallas, 30. In the case of Lane v. King, 8 Wend. 586, the Supreme Court of the state of New York decided the same way.
    *And the court, upon reviewing the authorities already cited, [92 Keech v. Hall, Doug. 21; Moss v. Gillimore, Ib. 269; Powell on Mortgages, 205, chapter 7 ; 11 Coke, 51 ; Dyer, 31, 173 ; and also the following American cases : Jackson v. Longhead, 2 Johns. 75 ; Jackson v. Fuller, 4 Johns. 215 ; McKercher v Hawley, 16 Johns. 289 ; 20 Ib. 61; 18 Ib 487 ; Jackson v. Dickerson, 6 Cowen, 147 ; Woodfall, 237 ; Jacob’s Law Dict. Embl. 4, 21, decide that the plaintiff below is entitled to recover, and give judgment. This seems, therefore, to be the established doctrine in the United States. I Hilliard’s Abridgt. 282, sec. 41; Ibid. 279, 280.
    The authorities, then, as far as the point has been adjudicated, are-clearly and strongly in favor of the plaintiff in error ; and I am at a loss to perceive any reason why the courts of this state should depart from this well established rule. Surely, in the ease at bar, the equities are strong with the defendant below.
    The lessee came in possession of the premises, not only after the making of the mortgage, but after bill of foreclosure filed, and but a few days before decree of sale. He put out the crop, with a full knowledge that the sheriff had advertised the premises, and, in fact, but a few days before the sale. Is it just and equitable that he should thus be permitted to incumber the premises for a period of almost an entire year ? In the ease of Bennett’s Lessee v. Miah Williams, 5 Ohio, 461, this court has truly said, “ that no rule is better established than that, during litigation, no change shall be made in ihe title affecting the rights of the parties.” See, also, 3 Ohio, 441. The mortgagor, defendant to the foreclosure case, could not surely thus incumber the premises. And does not his lessee, the plaintiff below, stand precisely in the same situation in this respect ? What interest could he acquire in the premises during the pendency of the foreclosure case ? Was not his proceeding in fraud of the rights of the mortgagee, or purchaser on foreclosure ? In putting out the crop he acted with full knowledge of all the facts of the case, and, consequently, at his own peril. There is, however, no hardship in his case. 93] *Aceording to the well established rule of courts of equity, he would be regarded as an impertinent intruder, and, by a. peremptory order, driven from the premises. 4 Johns. Ch. 609.
    It seems to me both the law and equity of the case are with the plaintiff in error; and I can not see upon what ground the defendant can possibly be entitled to recover. The judgment ought, therefore, to be reversed.
    Harris and Brown, for defendants in error.
    This case presents the important question, (highly important question to the agricultural interest of the State), “ Does the purchaser, under all judicial sales made in the month of November, (or at any time), take the growing crops in the ground, by virtue of that purchase ? ” It seems to us that the mere statement of the question will elicit the answer, “ No.”
    That a lessee of a mortgagor, after the mortgage, must hold subject to the mortgage, no one will doubt; but that is entirely indecisive of the question. The lessee must stand in the same relation to the mortgagee as the lessor does ; but if the lessor was in possession on foreclosure or ejectment, would the mortgagee take the crops ? In ejectment, when the mortgagee takes possession of the mortgaged premises, he must account for all the profits he obtains by that possession. That wheat and corn may be taken and sold, as chattels, on execution, there is no doubt. 2 Johns. 418 ; 3 Johns. 216. If they are chattels, clearly a purchaser at a judicial sale can take no interest in the growing crop ; and notwithstanding the purchaser may be entitled to possession of the premises, for general purposes, yet the tenant entitled to the crop has the possession, so far as may be necessary for cutting and carrying away the crop that he has sown. Wilber v. Payne, 1 Ohio, 252.
    The purchaser at a judicial sale can have no better title than if he had bought of the owner, whose right is thus sold. And if the owner in fee had sold in November would it have affected *the right of [94 the tenant who had sown his crop before the sale by the landlord ?
    Most of the eases cited by the counsel for the plaintiff in error arose in ejectment, and related to whether notice to quit was requisite or not, and does not bear on the question made in this case. The ease cited from 10 Johns. 360, is of this character; but in that very ease the court recognize the doctrine that where the tenant holds by an uncertain tenure that he shall be entitled to the growing crop. Surely under our whole system of judicial sales, where appraisementmust be had and sales are prohibited, unless at two thirds of the appraised value, the expiration of the tenant’s right of possession is totally uncertain. And we ask, most emphatically, in what situation would the agriculture of the country be placed in this State, shingled over with mortgages, as it is, if the tenant in possession, who sows before a judicial sale is made, is not permitted to reap what he has sown.
    The law requiring the real estate of a debtor, whether by mortgage or judgment, to be appraised, directs that the appraisers shall appraise the land. Clearly, they are not to appraise the crops growing on the land. And if it should appear that the appraisers had taken into their estimate the value of the growing crops, would not any court set aside the appraisement ? We think they, would.
    In some cases, the crop growing on the land is equal in value to the land itself; and yet eases might arise where there was not even a possibility of selling after the appraisement, before the crop might be cut and carried away.
    Then, if appraisers are not justifiable in appraising anything but the land, the purchaser takes nothing but what is appraised, and can not be considered as buying any thing but the land.
    Whatever may have been the decision of the courts in England or New York, in analogous eases, as the counsel has been forced to notice, their “ force may be weakened here -by the operation of our appraisement laws.” Their force is not only “ weakened,” but, we think, entirely destroyed, so that “ the reason of the law ceasing, the law ceases with it.” And the *court are undoubtedly left in this ease, un- [95 trammeled by adjudicated cases in any way analogous, and are left free to put such construction on our laws relative to the growing crops where judicial sales are had as will be conducive to the general interests of the State. And such a decision, the counsel for the defendant in •error have no doubt, must result in a confirmation of the judgment sought to be reversed.
   Lane, C. J.

If the question were between the grantor and grantee, whether growing crops, annual or other, pass by a deed of sale, it would be of easy solution. They are not, technically, “ emblements,” but “ issues,” or “ profits,” and part of the land, while in the owner’s hands : and, unless excepted, pass by the deed, because it is construed most strongly against him who makes it. 9 Cow. 39; 15 Mass. 159.

This reasoning does not apply to judicial sales when conducted under our system of appraisements. The principle, which now extends to personalty, as well as to lands, is, that the subject of sale should be appraised, and not sold, except at a price bearing some proportion to its value. But where lands are valued for judicial sale, the value of the annual crops is not included in the estimate. Yet, if the -croos passed, the purchaser would acquire property, which had not been subjected to appraisal; and thus defeat the system of policy intended for the debtor’s protection. The debtor’s rights, therefore, can be.saved only by regarding the annual crops as personalty, requiring a separate levy. The ease of Beggs v Thompson, 2 Ohio, 105, although ■decided on other grounds, adopts these premises, and barely abstains from expressing this result.

It is not necessary, howevar, to rest the case upon this ground, since other parties intervene. The lands mortgaged,were under lease. Between mortgagor and mortgagee, a mortgagor in possession is a tenant at will; and, if the emblements are not protected in his hands, it is because he may obtain their value in account, on bill to redeem. But he may lawfully lease, subject to the mortgage ; and when the mortgagee defeats the estate, either by entry or judicial sale, the annual 96] *crops are saved for the tenant, under the common rule relating to emblements, because the termination of the lease is uncertain. The elder jurists find abundant reason for the doctrine, in the protection the law owes to agriculture. Co. Lit. 55 ; 4 Kent Com. 73. And we ■may enlarge the basis by referring to our system of appraisals.

Judgment affirmed.  