Rosenstein v. Williams County

This is an appeal by the plaintiff from an order which sustained a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The controversy involves the ownership of what is commonly denominated the "landlord's share" of crops produced by a tenant or cropper during the farming season of 1941.

The material facts as set forth in the complaint are substantially as follows: The plaintiff Rosenstein was the owner of a tract of land in Williams County. He failed to pay taxes against the same and in the year 1940 the defendant, Williams County, acquired title thereto pursuant to the statutes which authorize a county, after proceedings had according to law, to obtain title to lands for unpaid delinquent taxes. The statutes provided that after due proceedings, and where no redemption was had, the property should "become the absolute property in fee of the county and the county auditor shall issue a tax deed therefor to the county in the same manner as to individual purchasers." Laws 1939, chap. 235, § 1.

The statutes further provided for a sale by the county, under the direction of the board of county commissioners, of lands so acquired by the county. Laws 1939, chap. 235, § 1; Laws 1941, chap. 286, §§ 10-19.

The laws in force at the time the defendant county acquired tax title to the lands in question here provided:

"Any real estate heretofore or hereafter forfeited to the county under tax deed proceedings, shall be subject to redemption by the owner whose title was forfeited, or his successor in interest, at any time while the tax title thereto remains in such county and prior to resale, upon the payment of the amount which would have been required to effect a redemption had no tax deed been issued thereon, plus interest at the rate of four (4%) per cent per annum, from the date of the execution of such tax deed; . . ." Laws 1939, chap 238, § 1.

The legislative assembly in 1941 amended the statutory provision last above referred to so as to read as follows: (Laws 1941, chap. 286, § 19):

"The owner, or his successor in interest, shall have the right to repurchase all real estate heretofore or hereafter, forfeited to the county under tax deed proceedings, so long as the tax title thereto remains in the county. Such purchase may be for cash or upon contract for deed made by and between the Board of County Commissioners and the owner, or his successor in interest. The consideration of such contract shall include: (1) The total amount required to be paid in the notice to effect a redemption. (2) The total amount of all subsequent taxes with interest, penalties and costs. Provided that if the fair market value of such property at the time of the repurchase thereof, is less than the total amount to be paid to effect a redemption, together with all subsequent taxes, interest, penalties and costs, the Board shall fix a fair and just sales price for such property, and shall require the owner to pay at least twenty-five (25%) per cent of the total contract in cash and the remainder shall be payable in not to exceed ten (10) annual equal installments as the Board of County Commissioners may determine, which installments shall bear interest at four (4%) per cent per annum until paid in full. Such contract shall further provide that if the vendee or his successor in interest, fails to pay one or more of the installments, when due with interest, the Board of County Commissioners may cancel such contract and thereupon all payments and improvements made by the vendee or his successor in interest, shall be forfeited to the county as liquidated damages for breach of contract unless otherwise expressly provided. That upon the full performance of such contract, the county shall execute and deliver a deed to the purchaser which shall be executed in the same manner as tax deeds and shall have the same legal effect as prescribed by the terms of this Act."

Other sections of the statute provide that a tax deed issued to a county "shall pass the absolute property in fee to the county free from all encumbrances whatsoever" (Laws 1941, chap. 286, § 9); and that a deed from a county to a purchaser from it of lands which it has so acquired shall contain the following provision:

"Now, therefore, the said county as party of the first part in consideration of the premises and pursuant to authority of law, does hereby grant, bargain, sell and convey to the second party, his heirs and assigns, that certain real property situated in said County of ______, North Dakota, described as follows, towit: To have and to hold the above described real property with all of the appurtenances thereunto belonging to the said party of the second part, — heirs, and assigns forever." Laws 1941, chap. 286, § 15.

The defendant county rented the premises in question here for the farming season of 1941 to one Vernon Knox, under an arrangement whereby a certain portion of the crop produced was reserved for, or would be turned over to, the county as compensation for the use of the land. On July 31, 1941, the plaintiff made written application to the county to repurchase the tract under the provisions of the statute above quoted and tendered the full amount which he was required to pay to effect such repurchase. The application was approved by the county commissioners of the defendant county and a proper written conveyance of the lands was made by the county to the plaintiff as prescribed by the law. At the time of such repurchase and conveyance, the crop that had been planted by Vernon Knox, under the arrangement with the county "was still green and unmatured." Immediately thereafter and while the crop was still unmatured, the plaintiff took possession of the premises and made demand for the share of the crop which it had been agreed between Knox and the defendant county should be turned over to the county as the landlord's or landowner's share of the 1941 crop as compensation for use of the land. The plaintiff claims that such share passed to him as an incident of the deed and that he is entitled thereto. The defendant county, on the other hand, claims that under the doctrine of emblements such share did not pass with the deed; that such share belongs to the county and that it had the right to receive and retain the same.

We are agreed that under the facts stated in the complaint the plaintiff is entitled to the share of the crop which the tenant or cropper, Vernon Knox, agreed the county should receive as compensation for use of the land. The right to rent which is to accrue passes to the grantee as an incident of the deed. Martin v. Royer, 19 N.D. 504, 508, 125 N.W. 1027; 36 C.J. pp. 364 et seq; 1 Thompson, Real Property, Perm. ed. pp. 437, 438, 457 et seq.; 8 Thompson, Real Property (Perm. ed.) pp. 527, 528; National Bank v. Lefferdink, 110 Neb. 275, 193 N.W. 916; Clark v. Strohbeen,190 Iowa 989, 181 N.W. 430, 13 A.L.R. 1419. The deed, which the statute required the county to execute and deliver to the plaintiff, conveyed to him all the rights and interests of the county, including any rent for the premises thereafter to accrue or any crops, then growing upon the land, belonging to the county. The deed prescribed by the legislature contains no reservation. The purpose of the statute was to reinvest the owner upon completion of the purchase with all the rights, title and interest of the county. The statute requires the former owner in order to effect a repurchase to pay for the land; (1) the total amount required in the notice of expiration of period of redemption to effect redemption and the total amount of all subsequent taxes with interest, penalties and costs; or (2) if the fair market value of the land at the time of the repurchase is less than the total amount of the sum to be paid to effect redemption together with all subsequent taxes, interest, penalties and costs, then the former owner is required to pay the amount of a fair and just sales price for the property as fixed by the Board of County Commissioners. The effect of the statute is to make the former owner "a preferred purchaser without profit to the county." State v. Morton County, 56 N.D. 712, 715, 219 N.W. 223, 224.

The respondent, however, contends that under the statute the county had no option but to accept the offer of the former owner, and that consequently its term of tenure was uncertain and indefinite; that such tenure might be terminated at any time the former owner saw fit to exercise his right to repurchase, and, hence, under the doctrine of emblements, the county is entitled to the landlord's share of the crop. The contention can not be sustained.

"The doctrine of emblements is the common-law right of a tenant, whose lease of an uncertain duration has been terminated without his fault, and without previous knowledge on his part, to enter upon the leased premises to cultivate, harvest, and remove the crop ``planted by him before the termination of his lease.' 3 Thompson, Real Property, Permanent ed. p. 814.

"The term ``emblements' denotes the right of a tenant to take and carry away, after his tenancy has ended, such annual products of the land as have resulted from his own care and labor. The right to emblements was limited at common law to those cases where the tenant had an uncertain interest which was determined after the sowing of the seed and before severance of the crop grown therefrom. Emblements are the away-going crop; in other words, the crop which is upon the ground and unharvested when the tenant goes away, his lease having determined; and the right to emblements is the right in the tenant to take away the away-going crop, and for that purpose to come upon the land and do all necessary things thereon. It is the common practice for the crop to be termed the away-going crop and the tenant the off-going tenant." 1 Thompson, Real Property, Perm. ed. p. 192.

This case does not involve any question as to the right of a tenant who has planted crops, to harvest, thresh, and remove such crops after his tenancy has ended. Indeed, no right of a tenant is involved at all. The county was not a tenant; it was an owner. It was as owner that it entered into the arrangement with Knox whereby he was given the right to farm the land during the farming season of 1941. It was as owner that it subsequently conveyed the land to the plaintiff. The county did not plant any crop. The crop was planted by a person who entered into possession and farmed the land under an agreement which such person had made with the county as the owner of the land. The person who planted the crop has harvested and threshed the same, and no question has been raised as to his right to do so.

It is immaterial whether the arrangement between Knox and the county created the relation of landlord and tenant, whether it gave to the county any interest in the growing crop, or whether the ownership of the entire crop was vested in Vernon Knox. Martin v. Royer, 19 N.D. 504, 125 N.W. 1027, supra. The deed from the county vested in the plaintiff the right and title of the county to any crops then growing on the land (Tanous v. Tracy, 55 N.D. 100, 212 N.W. 521), and also the right and title to any unaccrued rent. Martin v. Royer, supra; Clark v. Strohbeen, 190 Iowa 989, 181 N.W. 430, 13 A.L.R. 1419, supra.

The order appealed from is reversed and the cause is remanded for further proceedings conformable to the law.

MORRIS, Ch. J., and BURKE, NUESSLE and BURR, JJ., concur.