He cannot, therefore, prior to the happening of these events, mortgage that which he does not own, nor create a lien thereon prior to his becoming such owner. Williams v. King, 206 S.W. 106; Brod v. Guess, 211 S.W. 299. If the owner of land may mortgage the rents to become due him by the tenant, before the maturity of such rents, or if he may reserve such rents before they are due, when he sells and conveys the land, then he may in his deed reserve a lien on such rents to secure a part of the purchase money for the land, and all subsequent purchasers of the land would be charged with notice thereof, and he who purchases the land subject to the unpaid purchase money, and who does not assume the same, and who takes up one of the purchase money notes for his own protection, would be protected on such note to the extent of such lien on such crop rentals.
wn and had only leased when the owner of the goods was not a party to the contract for carriage); see also Diversified Mortgage Investors v. Lloyd D. Blaylock Gen. Contractor, Inc., 576 S.W.2d 794, 805 (Tex. 1978) (stating that a mechanic's and materialman's lien attaches to the interest of the person contracting for construction and if a lessee contracts for construction, the mechanic's lien attaches only to the leasehold interest, not to the fee interest of the lessor); Tex. State Bank v. Foremost Ins. Co., 477 S.W.2d 652, 654 (Tex. Civ. App.-Corpus Christi 1972, writ ref'd n.r.e.) (stating that no one can give a valid security interest in a mobile home unless he has rights in it); Cullum v. Lub-Tex Motor Co., 267 S.W. 322, 324 (Tex. Civ. App.-Amarillo 1924, no writ) ("The general rule is that when the mortgagor does not own the property, or such an interest therein as the law will recognize, an attempted mortgage given by him is void and creates no lien in favor of the mortgagee"); Williams v. King, 206 S.W. 106, 107 (Tex. Civ. App.-Austin 1917, no writ) (op. on reh'g) ("One cannot mortgage that which he does not own, so as to create a lien thereon prior to his becoming such owner.").See Cullum, 267 S.W. at 324.
We hold that no one can give a valid security interest in such property unless he has rights in the collateral. Williams v. King, 206 S.W. 106 (Tex.Civ.App. — Austin 1917). See Continental Credit Corporation v. Norman, 303 S.W.2d 449 (Tex.Civ.App. — San Antonio 1957, n.r.e.); Motor Investment Co. v. Knox City, 141 Tex. 530, 174 S.W.2d 482 (Tex.Sup. 1943); Sec. 9.204, Texas Business and Commerce Code.
In the absence of an agreement with Dr. Thomas or a well-recognized general custom, the seed caught and carried home by appellees would belong to the landlord and tenant as tenants in common and Dr. Thomas would be entitled to his share of the sales price whenever the cotton seed were sold. Southwestern Investment Co. v. Green, Tex.Civ.App., 19 S.W.2d 102; Rhoades v. Pointer, Tex.Civ.App., 243 S.W. 583; Tignor v. Toney, 13 Tex. Civ. App. 518, 35 S.W. 881; Fagan v. Vogt, 35 Tex. Civ. App. 528, 80 S.W. 624; Rogers v. McGuffey, 96 Tex. 565, 74 S.W. 753; Lamar v. Hildreth, Tex.Civ.App., 209 S.W. 167; Williams v. King, Tex.Civ.App., 206 S.W. 106; Burleson v. Earnest, Tex.Civ.App., 153 S.W.2d 869. Pat Callaway admitted that the cotton seed at planting time were worth $150 per ton and that he sold some of them at that price. The burden was upon appellees to account for these seed and their failure to do so requires that they should be charged with them at the rate of $150 per ton.
Appellant says judgment should have been given him for one-half of the rental on the farm for 1938, whether the property is separate or community. Without discussing the evidence further than to say that the record does not show there was a crop grown or in existence on the farm in 1938, we cite the following authorities: Curlee v. Rogan, Tex. Civ. App. 136 S.W. 1126; Trinity B. V. Ry. v. Doke, Tex. Civ. App. 152 S.W. 1174; Williams v. King, Tex. Civ. App. 206 S.W. 106; Millingar et ux. v. Foster, Tex.Com.App., 17 S.W.2d 768. Appellant insists that the personal property described in the judgment and on the ranch purchased with funds from a joint bank account is community property, and that appellant should have been given judgment for one-half of its value.
Considering the appellant Neeley's appeal, it appears, from the evidence, and the trial court so found, that the appellant West had no interest in the crop, but was entitled only to a one-fourth interest in the proceeds thereof, and that West had no such interest in it as would enable him to mortgage it to Neeley. Under authority of many Texas decisions, including Williams v. King (Tex.Civ.App.) 206 S.W. 106, Brod v. Guess (Tex.Civ.App.) 211 S.W. 299, and Curlee v. Rogan (Tex.Civ.App.) 136 S.W. 1126, we thought he was correct in his holding that no such interest in a specific portion of the crop was reserved by the landlord as would enable him to execute a valid mortgage to Neeley; but our Supreme Court has approved an opinion by Judge Speer, of the Commission of Appeals, in the case of Bowyer v. Beardon, 291 S.W. 219, which without expressly overruling those decisions, does, by his holding, in principle, overrule them.
Plaintiffs in error insist that it does neither because of no sufficient description of or reference to the crop for that year, which at the date of the instrument had not been planted, and that it is absolutely void as to subsequent creditors and lienholders like themselves, citing and relying upon these as their main authorities: Barrow v. San Angelo National Bank (Tex.Civ.App.) 138 S.W. 142, at page 144; Williams v. King et al. (Tex.Civ.App.) 206 S.W. 106; Dupree v. McClanahat, 1 White W. Civ.Cas.Ct.App. §§ 594 to 595; Richardson v. Washington Costley Bros., 88 Tex. 339, 31 S.W. 614; Mitchell v. Winslow, 11 Fed.Cas. No. 9673, 527, at page 533, 2 Story, 635; Butt v. Ellett, 19 Wall. 546, 22 L.Ed. 183; McDavid et al. v. Phillips, 100 Tex. 73, 94 S.W. 1131, 1132; Watson v. Paddleford Son (Tex.Civ.App.) 220 S.W. 779; Id., 110 Tex. 525, 221 S.W. 569; McKinney v. Ellison et al. (Tex.Civ.App.) 75 S.W. 55; Hamilton Nat. Bank v. Harris (Tex.Civ.App.) 260 S.W. 318; McConnell et al. v. Langdon, 3 Idaho (Hasb.) 157, 28 P. 403; Pennington v. Jones, 57 Iowa 37, 10 N.W. 274; Barr v. Cannon, 69 Iowa 20, 28 N.W. 413.
The general rule is that when the mortgagor does not own the property, or such an interest therein as the law will recognize, an attempted mortgage given by him is void and creates no lien in favor of the mortgagee. Martin v. Armstrong (Tex.Civ.App.) 62 S.W. 83; Cattlemen's Trust Co. v. Turner (Tex.Civ.App.) 182 S.W. 438; Williams v. King (Tex.Civ.App.) 206 S.W. 106; Brod v. Guess (Tex.Civ.App.) 211 S.W. 299. Since in contemplation of law Johnson is still the owner of the machine, he is a necessary party to any suit which involves the title or possession of the property.
"The courts occasionally lose sight of the above distinction between a sale under a prior and one under a subsequent lien, speaking of a purchaser under a prior lien as being entitled to the rent under the lease." In the cases of Security Mortgage Trust Co. v. Gill, 8 Tex. Civ. App. 358, 27 S.W. 835; Williams v. King, 206 S.W. 106; Brod v. Guess, 211 S.W. 29, the Courts of Civil Appeals were considering the question as to the power of the mortgagor to sever rents from the reversion in determining whether the purchaser, at the foreclosure sale, or an assignee of the rents holding under assignment made before the sale, would be entitled to collect such rents. It is doubted whether those cases, when analyzed, are authority for the proposition that the purchaser under foreclosure sale of a prior mortgage may sue the tenant, who has not attorned to such purchaser, on the lease contract. But whatever may be the ultimate decision as to such question, it would not, in our opinion, be decisive of this case.
Guess had but an inchoate and immature claim and lien, which never ripened into a complete right or title because of the intervening trustee's sale and vesting of title in appellee Starke prior to the time that the crops matured and were ready for division. Guess, by the chattel mortgage to Baugh, could convey no greater title nor right than he himself had in the crops, and, of course, appellant acquired no greater title or right therein. In the case of Williams v. King, reported in 206 S.W. 106, this court had before it the identical questions, the only substantial difference being that there the tenant paid the rents over to the mortgagees under certain chattel mortgages, whereas in the present case the rents or the proceeds of the crops were paid over by the tenant to the purchaser at trustee's sale. This consideration, however, does not affect the decision of the case, and the two cases must be considered as being in all substantial respects alike.