
    SANGER BROS. v. HUNSUCKER et al.
    (No. 9078.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 29, 1919.
    On Motion for Rehearing, May 10, 1919.)
    1. Mortgages <@==>372(4) — Foreclosure Sale Purchases — Rights as to Growing Crops.
    Purchaser, at trustee sale, under deed of trust, was not entitled to crops growing and un-matured at time of sale as against assignees of crop-sharing rental contract.
    2. Mortgages <@=>372(4) — Foreclosure Sale Purchaser — Right to Crops under Rental Contract — Replanted Crops.
    Where land is rented under crop-sharing rental contract, and, while crops are growing, is sold under deed of trust, and, after sale, a portion of the land is replanted by tenant under agreement with .purchaser, assignees of rental contract are entitled to the rent crop share of the replanted crops as against purchaser.
    3. Chattel Mortgages <@=>12 — Sales <@=>12 —Rent Crop — Unplanted Crop.
    Where a tenant under a valid contract with owner agrees to pay a crop rent, and thereafter actually plants and cultivates the specified crop, the crop may be sold or mortgaged even though at the time of the sale or mortgage the crop has not hctually been planted.
    4. Mortgages <@=>372(4) — Foreclosure Sale Purchaser — Validity oe Rental Contract.
    Rental contract, entered into by purchaser under deed of trust with tenant in possession, with knowledge of tenant’s rental contract with former owner, and assignment of rents thereunder, is of no effect as against assignees.
    On Motion for Rehearing.
    5. Mortgages <@=>137,197 — Nature of Mortgage-Status of Mortgagee.
    Mortgagee of lands is but a lienholder, the legal title remaining in the owner, of the mortgaged premises, with an unimpaired right to lease and obtain the emblements in the way of growing crops.
    6. Constitutional Law <@=>278(1) — Taking of Property — Due Process — Execution of Rental Contract by Mortgagor
    The execution of rental contract and assignment thereof by mortgagor does not constitute the taking of mortgagees’ property or an impairment of their security within federal Const. Amend. 14, prohibiting taking of property without due process of law.
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Suit by Emily Hunsucker and others against Sanger Bros, and others.
    Judgment for plaintiffs, and named defendants appeal.
    W. F. Ramsey, Jr., of Yuma, Ariz., and Coke & Coke, of Dallas, for appellants.
    J. E. Warren, of Cleburne, and G. W. Dob-son, of Burleson, for appellees.
   CONNER, C. J.

On June 30, 1916, Mary S. Taylor, a feme sole, wás the owner in her own name and right of 163 acres of land situated in Johnson county. On that day she made, acknowledged, and delivered to T. P. Barry, trustee, for the use and benefit of Sanger Bros, a deed of trust covering said land, to secure the payment of certain indebtedness aggregating $4,687.25. The deed conveyed the land, for the purpose stated, together with all improvements thereon and thereafter to he placed thereon, and with all and singular the rights and appurtenances to same belonging to or in any wise appertaining or incident thereto. The conveyance was forthwith dujy recorded upon the proper records of Johnson county. On December 1, 1916, Mary S. Taylor entered into a valid rental contract of the premises mentioned with Watters & Sons for one-fourth of the Johnson grass, cotton, and cotton seed, after paying the expenses of ginning and baling and one-third of all other crops. Thereafter, on January 2, 1917, while she yet owned the premises, and while the said Wat-ters & Sons were in the use and occupation thereof, cultivating the land under their said rental contract, the said Mary S. Taylor .duly assigned, for a valuable consideration, the rental contract to appellees to secure certain indebtedness. for which they sue in this suit. Thereafter, on June 6, 1917, crops of corn, oats and Johnson grass were growing on said premises under the contract Watters & Sons had made with Mary S. Taylor, when Sanger Bros, duly caused T. B. Barry to duly execute the trust vested in him by selling the 163 acres of land owned by Mary S. Taylor. 'Sanger Bros, purchased the land at the trustee sale, and at once entered into possession thereof, made new rental contract with Watters & Sons upon terms the same as Watters & Sons had made with Mary S. Taylor, and thereafter received from Watters & Sons, and appropriated for their own use, the rents specified in the rental contract with Mary S. Taylor.

The circumstances stated gave rise to the present suit, which was instituted by appel-lees against Mary S. Taylor for the amounts due from her and against Watters & Sons and Sanger Bros, for the value of the rents specified.

The case was tried upon an agreed statement of facts, and, judgment having been rendered in favor of plaintiffs, Sanger Bros, have appealed.

One of the appellants’ material contentions is presented by a proposition under tbe first and second assignments of error. Tbe proposition reads as follows:

“A lease contract made by a mortgagor after tbe execution and record of a valid mortgage is subject and subordinate thereto. Foreclosure of said mortgage extinguishes said lease, and tbe purchaser at foreclosure sales takes the land free from the same, is entitled to immediate possession, and all the rights of user and beneficial enjoyment incident to ownership, and, as a consequence, to all crops unmatured and growing at the date of purchase.”

Tbe case of Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284, and cases following it, seem to be conclusive against appellants’ proposition. .The question in tbe case named is thus stated:

“The question for our decision then is, Is the purchaser of mortgaged lands, as against the mortgagor or any person claiming under hinj by a purchase of the crops, entitled to such crops as were standing ungathered upon the land at the time of his purchase?”

Tbe question, after an elaborate discussion, was answered in the negative. Tbe decision, which is opposed to tbe bolding in England and to some of tbe other states, is based upon tbe proposition that in Texas tbe mortgagee of lands is but a lienholder, and not tbe owner or bolder of tbe legal title, and that until foreclosure tbe mortgagor has full title, with right to dispose of tbe crops. It was particularly said that— '

“A mortgagor is entitled to sever in law or fact the crops which stand upon his land at any time prior to the destruction of his title by sale under the mortgage; this results from his ownership and consequent right to the use and profits of the land, and the mortgage is taken with knowledge of that fact.”

Appellants’ counsel recognize tbe authority of the case of Willis v. Moore, supra, but insist that it is distinguishable from tbe case before us, in that there tbe crops at tbe time of tbe transfer or assignment thereof (which was in September) were matured and ready for severance from tbe soil, whereas in tbe case before us tbe transfer of tbe rental contract was in June, at a time when tbe crops, with tbe possible exception of tbe Johnson grass, were growing and unmatured, tbe contention being that until matured the crops were essentially part of tbe land, which necessarily passed to tbe purchaser at tbe trustee sale. But the case of Willis v. Moore was not so limited by tbe able judge who wrote the opinion, nor is tbe distinction suggested recognized in any of tbe cases called to our attention, which follow tbe case of Willis v. Moore. On tbe contrary, in tbe cases of McKinney v. Williams, 45 S. W. 335, and in Lombardi v. Shero, 14 Tex. Civ. App. 594, 37 S. W. 613, 971, and in Brown v. Leath, 17 Tex. Civ. App. 262, 42 S. W. 655, 44 S. W. 42, tbt distinction is repudiated. In those cases it was distineely held that a sale by tbe owner of land of crops growing thereon worked a severance, so that tbe crops did not pass to a purchaser at mortgage sale of tbe land, although tbe sale of tbe crops was subsequent to tbe maturity of tbe mortgage debt, and that at tbe time of tbe mortgage sale tbe crops bad not approached maturity. Writs of error were refused in both of tbe cases last cited, which would seem to be now here controlling.

We should perhaps notice a further contention of appellants, predicated upon tbe following extract from tbe agreed statement of facts, viz.:

“That at tbe said time (June 6, 1917), out of the 65 acres of cotton, 60 acres had on 'it a very poor stand, and it was of doubtful propriety or expediency to let said land go without, replanting; so that it was then and there mutually agreed by and between T. V. Watters & Sons and the said Sanger Bros, that said 60 acres of land should be replowed, reprepared, and replanted in cotton, and the said 60 acres of land under such agreement was replanted in cotton after the 6th day of June, 1917.”

Appellants insist that at all events Mary S. Taylor’s assignment of rents to appellees did not operate so as to include tbe rent cotton raised upon tbe 60 acres of land replanted, it being shown that tbe rents therefrom and collected by Sanger Bros, amounted to $495.59. While appellants’ counsel have forcibly presented a contrary view, we think we must bold that appellees, under tbe terms of the rental contract by Watters & Sons and by virtue of tbe assignment from tbe owner under which they bold, are entitled to tbe rents upon tbe 60 acres of cotton planted at tbe instance of appellants after their purchase.

It is to be noted in tbe first place that there is no clear showing in tbe statement of facts (and from which we have quoted that part pertinent to tbe question now under consideration) that there was a real necessity to replant any of tbe cotton. Tbe statement is merely that tbe 60 acres “bad on it a very poor stand,” and that tbe propriety or expediency of permitting tbe land to go without replanting. was “doubtful.” There is no showing that, bad tbe 60 acres not been replanted, no cotton of material value would have matured, and we think tbe appellants and tbe tenant at their own peril assumed tbe responsibility, and must have tbe doubt resolved against them. But regardless of this suggestion, and assuming for tbe purpose of our conclusion that tbe replanting was necessary, we nevertheless think that appellees were entitled to tbe rents due upon tbe replanted land, which undoubtedly thereafter produced a crop. As we understand tbe rule in this state to be, not only crops planted, but crops to be planted, and which, are thereafter actually planted pursuant to a contract with the owner of the land, may be sold or mortgaged. That is to say, that if a tenant, under a valid contract with the owner of the soil, agrees to pay a crop rent and thereafter actually plants and cultivates the specified crop, the same may be sold or mortgaged even though at the time o£ the sale or mortgage the crop has not actually been planted. In such case the crop is considered as having a potential existence, and, having such potential existence, it may be assigned or mortgaged before the crop is actually planted, as well as thereafter while growing. See Richardson v. Washington et al., 88 Tex. 339, 31 S. W. 614; Dupree v. McClanahan, 1 White & W. Civ. Cas. Ct. App. § 594 et seq.; Conley v. Nelin, 60 Tex. Civ. App. 395, 128 S. W. 424; Barron v. San Angelo Nat. Bank, 138 S. W. 142.

It is undisputed that appellants had notice of the rental contract between Mary S. Taylor and Watters & Sons and of the as-, signment thereof to appellees at the time of appellants’ purchase under their trust deed. Hence we conclude that by such assignment appellees acquired the full right as against Watters & Sons and appellants to the rents in question, and that the new rental contract entered into between Watters & Sons and appellants was of no effect as against appellees. It is accordingly our judgment that appellants’ assignments of error and all propositions thereunder should be overruled and the judgment affirmed.

On Motion for Rehearing.

The counsel for appellants very earnestly insist that we were in error, at least, in holding that the appellees were entitled to recover the cotton replanted after the sale of the land to 'Sanger Bros. It is contended that our ruling, leads to unreasonable results; that in accordance therewith an owner of land who had given a mortgage thereon might lawfully make a- rental contract extending through a series of years and thereafter assign such contract, and thus deprive the mortgagee in a large measure of the fruits of his mortgage. Logically this may seem true, but as to this contention we deem it sufficient to say that the case before us presents no such condition. The lease by the landlord here was for but one year, and it will be time enough to determine the supposititious cases when they are presented upon the record. Doubtless, if such a case be presented, some rule of law or equity may be found to prevent injustice. At all events, if we are to be controlled by the cases cited in our original opinion, as we think we must, it seems clear that Mary S. Taylor, the owner of the mortgaged premises involved in this suit, had a clear right to make the rental contract she- did with Watters & Sons, and that, having such right, she as clearly could lawfully transfer it with all of its force to appellees. If so, the tenant was liable for the rents as he had contracted for, both as to the growing crops and as to all crops actually planted and maturing for the crop year, and no action on the part of Sanger Bros, or of the tenants could impair, to any extent, appellees’ right as assignees of Mrs. Taylor.

In deference to a request on the part of able counsel who argued this case, we will also notice the further contention, not heretofore presented, that our ruling is violative of the Fourteenth Amendment of the Constitution of the United States, in that it amounts to taking of property without due course of lavy. We will not enter upon any extended discussion of the subject, but will merely say as to this that from an early date in this state, unlike as at common law, the mortgagee of lands is but a lienholder, the legal title yet remaining in the owner of the mortgaged premises, with an unimpaired right to lease and obtain the emblements in the way of growing crops. See Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534; Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284, where the subject is fully discussed. This being true, we cannot see that Sanger Bros, have been deprived of any right for which they contracted. The rule of law referred to was in full force in this state at the time they took then-liens upon Mrs. Taylor’s premises, and the trust deed lien therefore was affected by the rule as fully as if it had been written in the trust deed. By a very familiar rule of construction, 'Sanger Bros, must be held to have known at the time they took their trust deed that Mrs. Taylor had the lawful right to make the rental contract as she did, and had the further right of assigning such contract to others.

Under such circumstances, we know of no- decision of the United States courts which goes so far as to hold that such subsequent lease and assignment of Mrs. Taylor was a taking of appellants’ property, or an impairment of their security within the meaning of the elause of the federal Constitution referred to. Indeed, we do not see that such subsequent rental contract and assignment in fact impaired appellants’ security. The security was the land owned hy Mrs. Taylor, and not the crops involved in this suit, and nothing in the evidence in this case even tends to show that the land at the time of its sale under the trustee process to appellants was not, in fact, of much greater value than the debt to secure which the trust deed had been given.

We conclude the motion for rehearing should be overruled. 
      <@=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     