Opinion
09-14-1888
CALVIN v. SHIMER et al.
J. M. Roseberry, for petitioner. W. M. Davis, for complainant.
On bill to foreclose. Petition to modify order.
J. M. Roseberry, for petitioner. W. M. Davis, for complainant.
In this foreclosure suit a receiver was appointed, and ordered to take charge of the mortgaged premises, and to gather and sell the growing crops. The petitioner comes in and says the order is too extensive, in that it directs the receiver to take the products of land which he has planted and cultivated, to which produce the mortgagor had no title, because, by an agreement between him and the petitioner, the petitioner was to have them. The right on which he rests his claim is thus stated: His father, the mortgagor, being the owner of the whole premises, promised him that if he would assist him on the farm in doing all the work necessary to be done in the proper management of it, that then he (the petitioner) might have all the produce which he could raise on certain portions of the mortgaged premises. He says that he accepted the offer, and at once entered on the performance of his engagement, and did all the work that was required of him by virtue thereof; and that at such times as he could, and with the help of others whom he employed, he cultivated and produced the crops in question, and of which the receiver has taken possession. Counsel for the receiver says that the receiver only claims half these crops, and this is not denied. The claim on the behalf of the petitioner is that there is no such equity between the mortgagee and the petitioner, respecting these orders, as will give the fruits of his labor to the mortgagee. In making this claim, however, counsel admits the rule to be almost universally hostile to this view. See 1 Hil. Mortg. 181, 196, 199, 200, notes 181. He says it is true that every tenant of a mortgagor takes subject to the mortgage, and that all of the tenant's crops pass with the title on a sale under foreclosure; but insists that, as this is an agreement on the part of the son to take pay for his services in grain of his own raising on the mortgaged lands, it is in no sense a tenancy in the legal acceptation of the term, and consequently the crops so growing at the time of the appointment of the receiver are exempt from the general rule. He claims that crops so grown are held in common, and cites, in support of his views, State v. Jewell, 34 N. J. Law, 259, and Guest v. Opdyke, 31 N. J. Law, 552. These cases are not like the one before me. In those cases the agreement was that the lands should be worked for a share of the crops; whereas in this case the son (this petitioner) was to have all of the crops grown by him. He gave his services on the farm as rent for the land he had the absolute use of. Now, it impresses me that the case before me comes as near to the old-fashioned idea of the true criterion of the relation of landlord and tenant as is possible, without the unqualified agreement to pay money. In ordinary cases of tenancy the contract is that the occupant will pay a sum certain for the use of the premises, for a certain period. When this is done, the relation of landlord and tenant exists. In such case there would be no objection to the receiver taking the rents. And the only difference between the two cases is in the thing rendered as or for the rent; in the one case the rent rendered is money, while in the other it is services. In this case the petioner takes all of the grain, and gives a certain amount of labor therefor. This was the equivalent of money; it was money's worth. It was as though he had agreed to pay his rent in corn or peaches. A case reported in 2 Johns. 421, (Newcomb v. Ramer,) fully supports this view. See, also, Hoskins v. Rhodes, 1 Gill & J. 266, and Alwood v. Ruckman, 21 Ill. 200. I think this view must prevail. The receiver is entitled to the one-half which he claims. I will advise that the petition be dismissed, with costs.