Opinion
Rehearing Denied Nov. 12, 1931.
Hearing Granted by Supreme Court Dec. 10, 1931.
Appeal from Superior Court, Sutter County; K. S. Mahon, Judge.
Action by George C. Shintaffer against the Bank of Italy National Trust & Savings Association and others, in which named defendant and defendant Minnie E. Backus filed cross–complaints. From the judgment, the last–named defendant appeals.
Affirmed.
COUNSEL
Rich & Weis, of Marysville, for appellant Backus.
Desmond A. Winship, of Yuba City, for respondent Shintaffer.
Lawrence Schillig, of Yuba City, for respondent Bank of Italy Nat. Trust & Savings Ass’n.
Erling S. Norby, of Marysville, for respondents Hook.
OPINION
Mr. PLUMMER, Justice.
This is an appeal by the defendant and cross-complainant Minnie E. Backus from a judgment entered in the above-entitled action in favor of the Bank of Italy National Trust & Savings Association on its cross-complaint filed in this action. The facts upon which the cause was tried were all stipulated and are correctly summarized in the appellant’s brief, as follows:
On May 21, 1928, Henry D. Hook and his brother Ellis Hook were the owners of a parcel of real property in the county of Sutter, state of California. Henry D. Hook owned a two-thirds interest and Ellis Hook owned a one-third interest in the property. On that date Henry D. Hook and his wife mortgaged all of the property to defendant Minnie E. Backus. It is conceded by the parties that the mortgage created a first lien upon the two-thirds interest of Henry D. Hook only and did not create any lien against the one-third interest of Ellis Hook. On November 8, 1928, Henry D. Hook and wife executed a deed of trust to Bank of Italy National Trust & Savings Association on the same property. On March 1, 1929, Henry D. Hook leased said real property to plaintiff George C. Shintaffer for the years 1929 and 1930. Under said lease, Shintaffer, the lessee, agreed as follows: To plow, harrow, and plant the said 140 acres to grain, barley, or wheat, in a good farmerlike manner, and harvest same and deliver in bulk same as harvested, free of charge to lessor. To deliver one-fourth of said crop at his own expense at warehouse designated by lessor not further distant than Yuba City, Cal., in a good merchantable condition. Shintaffer immediately went into possession of said real property as the tenant of Henry D. Hook. On June 5, 1929, Minnie E. Backus commenced an action against Henry D. Hook and his wife to foreclose her mortgage. Notice of the pendency of said action was filed on the same date. The Bank of Italy National Trust & Savings Association was made a party to said action, was served with summons, and appeared and filed an answer and cross-complaint setting up its second lien on said property. Thereafter, and while Shintaffer was in possession of said property as a tenant of Henry D. Hook, a crop mortgage was executed to the Bank of Italy National Trust & Savings Association by said Henry D. Hook on the 1929 and 1930 crops growing and to be grown on said premises. Defendant Minnie E. Backus obtained a judgment of foreclosure and sale in her said action on July 27, 1929, and the interest of Henry D. Hook in and to said property was sold to Mrs. Backus at commissioner’s sale on August 24, 1929. During the year 1930 and prior to the expiration of the period within which said real property might have been redeemed, Shintaffer, who was still the tenant in possession of Henry D. Hook, cropped the land to wheat. The crop for that year amounted to 208,240 pounds, of which it is admitted that Shintaffer is entitled to three-fourths or 156,180 pounds. Shintaffer also holds the warehouse receipts for the remaining one-fourth, or 52,060 pounds, in which he claims no interest. Of this amount, it is admitted, Ellis Hook is entitled to his one-third interest. The ownership of the remaining amount of wheat, amounting to 34,706 pounds, is disputed. Bank of Italy National Trust & Savings Association claims this wheat by reason of its crop mortgage, and Minnie E. Backus claims the wheat as rents, issues, and profits from Shintaffer, the tenant in possession of said property during the period for redemption. Upon this statement of facts the trial court decided that the Bank of Italy National Trust & Savings Association, as holder of the crop mortgage from Henry D. Hook, is entitled to the possession of the 34,706 pounds of wheat, and that defendant Minnie E. Backus, the purchaser at the foreclosure sale, is not entitled to any of said wheat grown in said lands by Shintaffer as tenant in possession during the period for redemption.
The appellant rests her appeal upon the case of Clarke v. Cobb, 121 Cal. 595, 54 P. 74, and section 707 of the Code of Civil Procedure, which provides, in part, that the purchaser, from the time of sale, is entitled to receive from the tenant in possession, the rents of the property sold, or the value of the use and occupation thereof.
In the case at bar the record shows that the Bank of Italy National Trust & Savings Association had a chattel mortgage upon the crops grown upon the premises during the year 1930, executed in all particulars in accordance with the requirements of section 2955 of the Civil Code and the subsequent sections of the Code relating thereto. An examination of the case of Clarke v. Cobb reveals that the court actually held in that case (quoting from the syllabus): "That a certificate of sale of land, issued by a sheriff, does not pass any interest in the crops grown upon the land and ripened and harvested during the period of redemption." The facts in this case show that the crop involved was sown, ripened, and harvested before the period of redemption had expired and before the appellant had received a deed to the mortgaged premises.
This court, in a well-considered opinion written by Mr. Justice Pro Tempore Bartlett, in the case of First National Bank of Lindsay v. Garner, 91 Cal.App. 176, 266 P. 849, where the facts were exactly similar as to a mortgage upon real property and a chattel mortgage given subsequently upon citrus fruits, held as follows: "A subsequent mortgage given on all citrus fruit grown on mortgaged lands, as authorized by section 2955 of the Civil Code * * * is prior to the mortgage on the lands, and in an action to foreclose the latter mortgage the decree of foreclosure should have provided that a sale thereunder should be subject to the crop mortgagee’s right to take and hold all such crops at any time before the redemption period."
In Cowdery v. London, etc., Bank, 139 Cal. 298, 73 P. 196, 199, 96 Am. St. Rep. 115, a like question was considered as that involved here, and the court said: "A distinction is made in this state between the rents and profits, as such, and the corpus of the growing crops, it being held that the statutory mode of mortgaging crops as chattels is exclusive, and that a clause mortgaging the rents, issues, and profits, in a mortgage not executed in the form prescribed for chattel mortgages, is ineffectual to give the mortgagee any lien on or right to the growing crops, even after the appointment of a receiver, as against third persons who are in the position of purchasers for value, with or without notice." It was there held that the crop mortgage was prior in point of legal right, though subsequent in time of execution. To the same effect is the case of Locke v. Klunker, 123 Cal. 231, 55 P. 993.
In view of these decisions, which seem to us to settle the law in this state, the judgment of the trial court must be affirmed, and it is so ordered.
I concur: R. L. THOMPSON, J.
Presiding Justice PRESTON, deeming himself disqualified, did not participate in the foregoing opinion.