sale? There is no question presented as to the validity of this chattel mortgage in its inception. The property was in esse, and the right to mortgage is not questioned; but it is claimed that by the confirmation of the sale the title to the real estate on which the wheat was growing passed to Aldrich and carried with it the wheat. So the ownership of this property is dependent on the question, Do crops that are not matured, but growing, on the land at the time of the confirmation of the judicial sale, pass to the purchaser of the land, or do they remain the property of him who planted them? Phases of this 278 question have been passed upon by this court. In Foss v. Marr, 40 Neb. 559, 59 N. W. 122, this court held: "A matured crop of corn standing ungathered upon land sold at a judicial sale, which was not considered or taken into account by the appraisers in arriving at the value of the premises sold, did not pass to the purchaser at the judicial sale, but remained the property of the mortgagor who had planted and cultivated it." In Monday v. O'Neil, 44 Neb. 724, 48 Am. St. Rep. 760, 63 N. W. 32, the court say: "A tenant for years of mortgaged land planted a crop after the rendition of a decree foreclosing the mortgage, the tenant having been a defendant in the foreclosure suit. The land was sold under the decree and the sale confirmed while the crop was growing and before it matured. The purchaser did not obtain possession of the land, but permitted the tenant to retain possession, merely notifying him that he, the purchaser, would expect from the tenant rent in money or in kind. Held, that as between the tenant and purchaser the former was entitled to the crop." In this last case the court did not determine what the rights of the parties would have been had Monday secured possession and evicted O'Neil before the crop matured. But the court in both Foss v. Marr, 40 Neb. 559, 59 N. W. 122, and Monday v. O'Neil, 44 Neb. 724, 48 Am. St. Rep. 760, 63 N. W. 32, bases its decision on the case of Cassilly v. Rhodes, 12 Ohio, 88, and Houts v. Showalter, 10 Ohio St. 125. The doctrine of these cases is that annual crops growing on the land do not pass to the purchaser on judicial sale, because in law they are regarded as personalty. We must either accept this classification or reject the doctrine of the Ohio cases absolutely. To reject. this would be to overturn Foss v. Marr, 40 Neb. 559, 59 N. W. 122, and Monday v. O'Neil, 44 Neb. 724, 48 Am. St. Rep. 760, 63 N. W. 32, which, to the extent they have gone in the application of this doctrine, have become a rule of property in this state; and for this reason we do not feel justified in overthrow

ing them. This being so, nothing but the other alternative is left to us, which is the acceptance of this classification, and with the Ohio cases hold that the title to the annual crops growing on the lands does not pass to the purchaser on judicial sale, for the reason that the law regards them 279 as personal property. This being their legal status, the controversy over whether or not they were taken into account by the appraisers becomes immaterial. The appraisers of the land would have no right to appraise the personalty which they may find upon the land. This status of the property also renders the question of possession by the purchaser a plain and reasonable one. It will be conceded that a purchase of real estate would not carry with it the personal property of the vendor. When you buy and receive title to my land, you do not buy my horse, and by the act of buying the land you have acquired no right to the horse. The result would be, and is, the logical sequence of all personal property of whatsoever nature and kind, and hence Aldrich acquired no ownership of this property in controversy by reason of his purchase at judicial sale of the land on which the wheat was growing. Having no ownership, how would the possession of the land give him the right to treat this property as his own and apply it to his own use? Counsel suggest no answer to this question. Nor do we think it could be answered to his advantage. The land passes by a judicial sale to the purchaser, burdened with any and all the rights of other parties, including the mortgagor, that are not inconsistent with, or opposed to, title. Title, and this alone, is all the court gives the purchaser. From this he may, or may not, according to the circumstances of the case, or the rights of others, have the right of possession. But the possession of the purchaser could not, by any reason of that act, destroy the rights of others, nor justify him in appropriating other people's property; and it would make no difference to whom it belonged, as it did not belong to him.

The law recognizes the necessity of agriculture and favors its promotion, and, as is said in Houts v. Showalter, 10 Ohio St. 125: "Under our system, frequent advertisements and offers for sale, and occasionally revaluations are necessary, before a sale can be effected. When an appraisement is made it cannot be foreseen when a sale will be effected. It is not for the interest of any party, nor for the public 280 interest, that the land should thenceforth lie waste; then, there may have been no crop sown or planted." This failure to sow or plant is what the law discourages, and it can only encourage sowing and planting un

der circumstances like these by assuring a man that if he sow,

he shall reap.

The judgment of the court below is right, and we recommend that it be affirmed.

Barnes and Pound, CC., concur.

By the Court. For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed.

on the

A Crop of Grain standing on mortgaged land at the time of its sale under a decree of foreclosure has been held to belong to the purchaser, notwithstanding a previous chattel mortgage crop: Jones v. Adams, 37 Or. 476, 82 Am. St. Rep. 766, 59 Pac. 811, 62 Pac. 16. See, also, Reily v. Carter, 75 Miss. 798, 23 South. 435, 65 Am. St. Rep. 621, and cases cited in the cross-reference note thereto; Wootton v. White, 90 Md. 64, 78 Am. St. Rep. 425, 44 Atl. 1026; Aultman & Taylor Co. v. O'Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756; note to Crews v. Pendleton, 19 Am. Dec. 752-755.

FELINO v. NEWCOMB LUMBER COMPANY.

[64 Neb. 335, 89 N. W. 755.]

MORTGAGE-Title and Possession of Mortgagee.-A provision in a mortgage that the mortgagee, upon default, shall be entitled to the immediate possession of the premises is valid, and subsequent purchasers and encumbrancers are chargeable with notice thereof. (p. 648.)

MORTGAGEE in Possession-Rents and Profits.-A subsequent purchaser or encumbrancer cannot maintain an action for the rents and profits against a mortgagee who has taken possession of the premises in accordance with the terms of the mortgage; while he will be required to account for the rents and profits, such ac-count should be taken in the suit to foreclose or redeem. (p. 649.) MORTGAGE FORECLOSURE Concludes Rights to Rents and Profits. The foreclosure of a mortgage, by the terms of which the mortgagee, upon default, took possession of the premises, concludes the parties to the proceedings as to the rents and profits. (p. 649.) Weaver & Giller, for the plaintiff in error.

Baldrige & De Bord, for the defendant in error.

335 ALBERT, C. On the first day of August, 1891, Alva A. Richardson and his wife executed and delivered to Luigui Felino a mortgage on certain real estate in South Omaha, to secure the payment of their note, executed to the same party, for two thousand dollars, with interest at seven per cent per an

num, payable 336 semi-annually, according to the tenor of ten interest coupons for seventy dollars each, attached thereto. The mortgage was duly filed and recorded on the fifth day of August, 1891. In addition to the conveyances and agreements usually found in a mortgage, the mortgage contained the following clause: "And upon forfeiture of this mortgage, or in case of default in any of the payments herein provided the said Luigui Felino shall be entitled to the immediate possession of said premises." On the fifteenth day of August, 1891, the K. S. Newcomb Lumber Company sold and delivered to the said mortgagors certain material for the erection of a building on the mortgaged premises, and on the twenty-fourth day of December thereafter filed a lien therefor against said premises. On the thirtieth day of October, 1893, the said lumber company filed its petition in the district court against said mortgagors, and others, praying for the foreclosure of its said lien. The mortgagee, above mentioned, was not made a party to the suit. On the twenty-ninth day of December, 1894, a decree was rendered in said suit in favor of the lumber company, and on the first day of October, 1895, the premises were sold in pursuance of said decree to the said lumber company, and, in pursuance of an order confirming the same, on the twenty-sixth day of October, 1859, a deed issued to said purchaser. On the twenty-first day of September, 1895, Felino, the mortgagee, commenced an action for the foreclosure of his mortgage, making the said lumber company a party defendant, which action was prosecuted to a decree on the twenty-sixth day of May, 1896. In pursuance of this decree, in October, 1896, the premises were sold to Felino, the mortgagee, who on the thirty-first day of October, thereafter, received a sheriff's deed therefor. On the second day of October, 1895, and after the commencement of his suit to foreclose the mortgage, the mortgagors, having made default, surrendered possession of the premises to the mortgagee. On the 26th day of October, 1895, and after having received its deed to said premises, the lumber company demanded possession of the premises from the mortgagee, who was then in possession, which was refused. 337 On the twenty-first day of May, 1898, the lumber company commenced the present action against Felino to recover the rents and profits of said premises subsequent to the time it received its deed from the sheriff, issued in pursuance of the decree of foreclosure of its said lien. A trial was had to the court, which resulted in a finding and judgment for the plaintiff. The defendant brings the case here on error.

The theory of the plaintiff in the court below, and the only theory on which the judgment of the district court can be upheld, is that the mortgagor of real property retains the legal title and the right of possession until confirmation of a sale under a decree of foreclosure of the mortgage, and that such right of possession carries with it the right to the rents and profits of the mortgaged premises, and that as the plaintiff, by virtue of the sale in pursuance of the decree foreclosing its lien, acquired all the right, title and interest of the owner of the fee in and to the premises in controversy, it thereby acquired their right of possession, and, consequently, their right to the rents and profits accruing subsequently to the issuance of such deed and prior to the sale to the defendant in this case in pursuance of the decree foreclosing his mortgage. In our opinion, this theory is unsound. In the absence of any statutory regulation, the mortgagee is entitled to the possession of the premises: Jones on Mortgages, sec. 667. The only statutory regulation on the subject in this state is that to be found in section 55, chapter 73 of the Compiled Statutes, which is as follows: "In the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession thereof." This provision leaves it competent for the parties to a mortgage to stipulate for the investiture of the mortgagee with the legal title and right of possession, which carries with it the right to the rents and profits. As we have seen, in this case, the mortgage expressly provided that upon the forfeiture of the mortgage, or in case of default in any of the payments, the mortgagee should be entitled to the immediate possession of the premises. Of this provision subsequent 338 purchasers and encumbrancers, including the plaintiff in this case, were as fully charged with notice as with any other provision of the mortgage. In California it is provided by statute that the mortgagee shall not be entitled to possession unless authorized by the express terms of the mortgage. Under this provision it was held that if the mortgagee, after condition broken, takes possession by consent of the mortgagor, it is presumed, in the absence of clear proof to the contrary, that he is to receive the rents and profits and apply them to the debts secured, and that he is to hold possession until the debt is paid: Dutton v. Warschauer, 21 Cal. 609, 82 Am. Dec. 765; Frink v. Le Roy, 49 Cal. 314. These cases, while not directly in point, clearly recognize the right of the mortgagee to the possession of the premises under a stipulation like the one under consideration. In McIntyre v. Whit