Favorite v. Deardorff , 84 Ind. 555 ( 1882 )

Elliott, J.

On the 14th day of May, 1878, Thomas J. and Christopher C. Taylor executed to Bennett Foresman a mortgage upon real estate for $7,412; the mortgagors were then in possession of the land mortgaged.- On the same day the Taylors executed a mortgage to the Second National Bank of Lafayette for $7,483.65 on the same land; on the 2d day of Jupe, 1879, Foresman commenced an action to foreclose the mortgage executed to him, making defendants thereto the Second National Bank and the appellee, Eobert Deardorff; a counter-claim was filed by the bank, showing, in addition to the mortgage executed to it, that the mortgagors were all insolvent, and that the mortgaged property was worth much less than its'claim, and praying for the appointment of a receiver; pursuant to the prayer of the bank’s counter-claim, the appellant was appointed receiver on the 1st day of July, 1879, and authorized to collect the rents of the mortgaged property for the year allowed for redemption. Foresman obtained judgment and decree of foreclosure, as did the bank; the judgment of the former was paid out of the proceeds of the sale upon the decree of foreclosure, and $3,310 was applied on the judgment in favor of the bank, leaving the remainder of that judgment unpaid. The bank was the purchaser at the sheriff’s sale, and, the land not being redeemed within the year, received a deed from the sheriff. On the 30th day of November, 1878, the appellee recovered judgment against the Taylors; on this judgment execution was issued and levied on a crop of wheat sowed by the Taylors on the mortgaged land, and on^fche 26th day of May, 1879, the sheriff sold the wheat to the appellee; afterwards, on June 13th, 1879, the sheriff levied a writ, issued for the unpaid balance of the judgment, on growing corn planted by the Taylors on the mortgaged land, and sold this crop to appellee on the 15th day of July, 1879.

Appellant claims the crops of wheat and corn by virtue of his rights as receiver, and the appellee claims that the growing crops were personal property, and that the sale by the sheriff vested title in him.

It is our opinion that the court did right in holding that the appellee was entitled to the grain in controversy. The mortgage, upon which rested the right of the bank to have a receiver appointed, did not vest any ownership of the land in the mortgagees. The mortgage gave them a lien upon the land, but the title remained in the mortgagor. Fletcher v. Holmes, 32 Ind. 497; Reasoner v. Edmundson, 5 Ind. 393. The .statute expressly provides that unless the mortgage stipulates «otherwise, the mortgagor shall be entitled to possession. Where by statute, or where by the terms of the mortgage, the mortgagor is entitled to possession, his right can not be disturbed by the mortgagee until default. 1 Jones Mortg., section 80. As long as the mortgagor is entitled to possession of the land, he has a right to the rents and profits. 1 Jones Mortg., section 670. If the mortgagor had sold the crops before the right of the mortgagee to enter had accrued, we suppose there could be no doubt that his vendee would have acquired title.

Growing crops are often considered personal property. Where the right of severance exists, they are always considered personal and not real property. The right of the mortgagors to possession and to the rents and profits gave, them a right to crops which were of a severable nature, and this right was acquired by the purchaser at the sheriff’s sale. Growing crops may be levied upon and sold as personal property. Lindley v. Kelley, 42 Ind. 294.

A receiver appointed to take charge of rents and profits does not acquire any title to the property out of which they issue. Foster v. Townshend, 68 N. Y. 203. The appellant in this case did not, therefore, acquire a right to the growing crops because of any acquisition of title to the land itself, and, as the crops had already been seized under a paramount lien, he can not claim them as rents and profits. The mortgagees themselves would not have had any right of entry, even prior to the redemption act of 1861, until after the sale, and until then could not have asserted the right of an owner, and since the adoption of the redemption acts, their rights to rents and profits during the year are not as owners, but vest in them in virtue of their character of creditors. It can not be that a right as creditor can confer a right superior to that of one who has purchased before the claim of the creditor became a lien. In Rider v. Vrooman, 12 Hun, 299, the question we have in hand received a very full and careful consideration, and the court said: " The receiver obtained no right to the rents and' profits of the mortgaged premises until his appointment, and then only to such as remained unpaid to the owner of the equity of redemption. * * * * It was by virtue of the appointment that the mortgagee obtained an equitable lien on the unpaid rents of the premises mortgaged. (Lofsky v. Maujer, 3 Sandf. Ch. 69; Howell v. Ripley, 10 Paige, 43; Astor v. Turner, 11 Paige, 436; Rank of Ogdensburg v. Arnold, 5 Paige, 38; Post v. Dorr, 4 Edw. Ch. 412.)”

The conclusion reached by us in this case is not in conflict with Connelly v. Dickson, 76 Ind. 440, for there was in that case no question as to the rights of intervening purchasers, as there is here.

Judgment affirmed.