Shintaffer v. Bank of Italy National Trust & Savings Co.

SEAWELL, J.

This action is in the nature of a hill of interpleader filed by plaintiff George C. Shintaffer to determine conflicting claims to a one-fourth portion of the wheat crop grown and harvested by him during the year 1930 on land in Sutter County leased from defendant Henry D. Hook, under a lease providing for delivery of one-fourth of the wheat crop to the lessor. By consent a judgment for one-third of said one-fourth portion of the crop was awarded to Ellis Hook, an incompetent person, who owned an undivided one-third interest in the leased property and did not join in the execution of said lease or any of the other instruments hereinafter referred to. The respondent Bank of Italy, in whose favor the trial court rendered judgment, and appellant Minnie E. Backus assert rival claims to the remaining two-thirds of said one-fourth portion, consisting of 34,706 pounds, valued by stipulation at $500. In our opinion appellant is entitled to a reversal.

The appeal is before us on a bill of exceptions, from which it appears that the case was tried on an agreed statement of facts presenting the single legal question now before this court for consideration. The land leased to Shintaffer by a lease executed on March 1, 1929, was subject to a prior real estate mortgage executed by Henry Hook. The crop in question was planted, grown and harvested by Shintaffer in 1930 during the one-year period of redemption following the foreclosure of the real estate mortgage and sale of Henry Hook’s two-thirds interest in the property

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to the 'mortgagee, appellant Backus, on August 24, 1929. Subsequent to the institution of the action for foreclosure of the real estate mortgage, but prior to the foreclosure sale, and while ShintafEer, the lessee, was in possession, Hook executed a crop mortgage in favor of respondent Bank of Italy upon the one-fourth portion of the crop which he was entitled to receive from ShintafEer under the terms of his lease. The real estate mortgage from Hook to appellant Backus was recorded and respondent Bank of Italy, which held a second lien on the realty, was made a party to, and appeared in, the foreclosure action. For the reason that there is no controversy as to the facts, which are stipulated to, it would serve no purpose to recite them in greater detail.

The claim of appellant Minnie E. Backus, mortgagee and purchaser at the foreclosure sale, to the wheat grown during the period of redemption by a lessee of the premises and deliverable to the mortgagor as rent must be upheld. (Section 707 of the Code of Civil Procedure provides as follows : “The purchaser from the time of the sale until a redemption, and a redemptioner, from the time of his redemption until another redemption, is entitled to receive, from the tenant in possession, the rents of the property sold, or the value of the use and occupation thereof. But when any rents or profits have been received by the judgment creditor or purchaser, or his or their assigns, from the property thus sold preceding such redemption, the amounts of such rents and profits shall be a credit upon the redemption money to be paid. ...” The construction placed on said section by this court in the case of