#### *Crews v. Pendleton and Mountcastle.

June, 1829.

[19 Am. Dec. 750.]

Hortgages — Foreclosure*—Case at Bar. — Mortgage of land, slaves and stock: chancellor, in May 1822, decrees foreclosure, and directs his marshal, unless the debt be paid within six months, to sell the subject to satisfy the debt; mortgagor is allowed to retain possession, and sows crop in spring of 1823: marshal sells the subject in June 1823, and mortgagee purchases it, and completes crop: afterwards, and before marshal’s sale reported and confirmed, creditors of mortgagor levy fi. fa. on crop of 1823, then gathered. Held,

1. Same — Same—Growing Crops.† — Vendee at marshal’s sale entitled to the then growing crop.

2. Same — Same—Emblements.—Tho’ mortgagor in possession be tenant at will to mortgagee, yet doctrine of emblements does not apply to his case.

3. Same — Same—Protection of Vendee. — Chancellor ought, in such case, t'o protect vendee’s property in the crop, by injoining mortgagor’s creditors from proceeding under their execution.

William Bong, by deed dated September 18, 1819, and duly recorded in the county court of Amherst, mortgaged to Thomas Crews, and William, Betsey and Nancy Brydie, two tracts of land in Amherst, about forty slaves, sundry household furniture, and stocks of horses, cattle, sheep and hogs, to secure payment of a debt of 8,320 dollars due by him to Crews, and a debt of 10,081 dollars which he owed to the Brydies. The deed appointed the 20th day of the same month for the payment of the first debt, and the 251¡h for the payment of the last; and provided, that the mortgagor should hold and enjoy the subject till he should make default of payment; and that, from and after such default, the mortgagees might “enter upon, have, hold, possess and enjoy,” the whole subject real and personal, “and receive and take "the rents, issues and profits thereof, without hindrance &c. until the debts should be fully paid off and discharged.’

Shortly after the execution of the mortgage, several creditors of the mortgagor (the appellee Pendleton was one of them) sued out writs of fieri facias against him, and caused them to be levied on some of the mortgaged slaves; and the mortgagees, in October 1819, exhibited their bill against the mortgagor, and against the creditors whose executions had been so levied, setting forth their rights under the mortgage, spraying an injunction to stay further proceedings upon the executions, a foreclosure of the mortgagor’s equity of redemption, and a sale of the mortgaged subject to satisfy the debts thereby secured to the mortgagees. The injunction was awarded. Some of the defendants put in answers, impeaching the mortgage as fraudulent; others, and among them, Bong, the mortgagor, made default. And on the hearing, May 18th 1822, the chancellor decreed that, unless Bong should pay the mortgagees the debts due to them, respectively, and the costs of the suit, within six months from the date of the decree, his equity of redemption in the mortgaged subject, should be foreclosed, and that the marshal of the court should sell the whole of it, for cash, and after defraying expenses, pay the mortgagees the debts and costs due to them, and pay the surplus if any to the mortgagor; and make report of his proceedings in order to a final decree.

Under this decree, the marshal sold all the mortgaged subject in June 1823, when there was a crop o'f wheat, oats, indian corn, and tobacco growing on the land, which had been sown and planted by Bong, who had been allowed to retain the possession of the land, and the slaves and stock upon it, till the day of sale. The whole subject was purchased at the sale, by the mortgagee Crews.

Afterwards, and before the marshal’s sales had been reported, and confirmed by the court, Pendleton and Mountcastle, in the autumn of 1823, sued out a writ of fieri facias against Bong, the mortgagor, and caused it to be levied on the tobacco #hanging unstript in the tobacco houses, a parcel of indian corn, and of fodder and oats in the stacks, being part of the crop of 1823, then gathered. This proceeding gave occasion to the present controversy.

Por Crews immediately exhibited his bill against Pendleton and Mountcastle, setting *109forth all the proceedings in the other suit; that he had purchased the land at the sale, with the growing crops upon it; that the proceeds of the marshal’s sales had fallen far short of the amount of the debt x'secured by the mortgage; that he had with his own means finished and gathered the crops, and that they were his property, though he intended to apply the net proceeds thereof towards the satisfaction of the balance of the mortgaged debts: and praying an injunction to restrain the sheriff from selling, under Pendleton and Mountcastle’s execution, the crops on which he had levied it.

The injunction was awarded the 28th October 1823.

On the 30th, Pendleton, on behalf of Pendleton and Mountcastle, filed an answer, in which he denied, tnat Crews purchased the growing crops at the marshal’s sale in June 1823, and insisted that they were properly taken to satisfy their execution : and he alleged, that the land was sold by the acre; that Long had always been permitted to hold the whole subject, both before the marshal’s sale and since, to have complete control of the crops, and to sell and appropriate them to his own use; that there was a fraudulent combination between Long and Crews to defraud Long’s other creditors; and that the debt due to themselves was contracted by Long for supplies of cloathing &c. for the mortgaged slaves, in the year 1819. Of these allegations, no proofs were adduced.

On the 31st, the chancellor dissolved the injunction. And from this order, Crews appealed to this court.

Johnson, for the appellant.

The chancellor’s order dissolving the injunction in this case, could not, possibly, have been founded on the imputation contained in Pendleton’s answer, of a fraudulent combination between Crews and Long, to defeat the just claims of Long’s other creditors; since there is no proof in the record, nothing to justify even a suspicion, of any such fraud ; and, since, moreover, the chancellor’s own decree of foreclosure (in the first suit) in which all parties have acquiesced without complaint, plainly evinced, that, in his opinion, this charge of fraud was wholly groundless.

*Nor can it be supposed, that the chancellor dissolved the injunction, under the impression, that he had no jurisdiction to interfere, in that way, with the proceedings upon Pendleton and Mountcastle’s execution. The principle of Bowyer v. Creigh, 3 Rand. 25, does not touch this case. There, an execution at the suit of one creditor, was levied on chattels that had been conveyed by the debtor to a trustee, in trust to secure a debt due to another creditor, who asked the chancellor to stay proceedings on the execution by injunction : a complete legal title was vested in the trustee; and there was nothing to prevent him, or the cestui que trust, who had a right to sue in his name, from vindicating his rights at law. But, in this case, the legal title of the property taken in execution, was not in Crews or in any trustee for him: he was in a court of equity, asserting his equitable lien upon the subject; the chancellor had decreed a sale of it by his marshal, whose office was only ministerial, and Crews was only a purchaser at the sale, which yet remained to be confirmed. The title lay at the chancellor’s own disposal. He was bound to protect the purchaser of a subject sold under his decree, in the possession and enjoj'ment of it.

The case, then, is to be decided on its merits. Was Crews entitled to the crops growing on the land at the date of his purchase from the marshal? The sale was in June. The crops then growing had been sown and planted by Long, but he did the work with the slaves &c. that belonged, as well as the land, to the mortgaged subject. The crops of wheat and oats were reaped and secured by Crews’s own means : the indian corn was in an early stage, the tobacco in the earliest stage of its growth; and as to these, especially the tobacco, the labour and expense o± tillage, must have been supplied, for the most part, by the purchaser. Crews must be regarded as a purchaser for cash: interest on so much of the debts due on the mortgage, as the proceeds of the sales discharged, ceased immediately. It is an established rule, that a purchaser under a decree in chancery, is entitled to be let into possession from quarter *day preceding his purchase, he paying his money before the following one; that is, where the subject yields rents payable quarterly : if the subject yield profits settled monthly, the purchaser is, entitled to the profits from the beginning of the month in which he purchased, paying the purchase money in the course of that month. Sugd. law of Vend. 41, 2;* Wren v. Kirton, 8 Ves. 502; Barker v. Harper, Cooper’s Ch. Ca. 32. There are cases, which may, at first view, seem at variance with this rule; but these turned on their own peculiar circumstances, and leave the rule undisturbed. Twigg v. Fifield, 13 Ves. 517; Ex parte Minor, 11 Ves. 559. Crews was a purchaser for cash, under a decree foreclosing a mortgage, wherein it is expressly provided, that, in default of payment of the debt, the mortgagees may enter-on the real and take possession of the personal subject, and thenceforth take the-rents, issues and profits of the whole, till their debts shall be discharged; and the profits he claims, are chiefly the fruits of labour furnished by himself.

The appellees cannot maintain their claim to take these crops in execution, on the ground that their debtor Long was entitled to them as emblements. A mortgagor in possession is, in some sort, a tenant at will or at sufferance of the mortgagee; but not a tenant at will entitled to emblements. Emblements are given by an equitable principle of the law, in order that the tenant may not be deprived of the fruits of his industry, by the sudden and unexpected determination of his tenancy: in this case, to give Crews the crops, is not to deprive-Long of them; it is the application of them to the payment of his debts, and that in pursuance of his express agreement. But of whom was Long the tenant at will? of' Crews? of the marshal? of the court? Crews, *110had resorted to the court, to assert his equitable rights; he thenceforth had no will to exercise; he was to take what the chancellor should mete to him. The marshal was a mere ministerial officer, who certainly had no power, by ^express grant or tacit permission to constitute Long his tenant upon any terms. The court, which had the whole subject at its disposal, gave Long a precise term of six months from the date of its decree of foreclosure: that term expired November 18th 1822. If Long continued to sow, without regard to the duration of the term, he was not entitled to reap.

R. C. Nicholas and Scott, for the appellees.

If Crews acquired by his purchase at the marshal’s sale, a right to the growing crop, upon which,' after it was severed, Pendleton and Mountcastle’s execution was levied, he might have maintained trover for the subject, whether his right was perfect or qualified, and recovered damages commensurate with his interest; or he might have forbidden the sale, in which case the sheriff would háve proceeded to sell at his own peril, unless he took an indemnifying bond; and if P. and M. gave the bond, Crews might have recovered upon it full satisfaction for the injury. Crews, then, had an adequate remedy at law ; and the authority of Bowyer v. Creigh is in point, and conclusive, that his case is not proper for relief in equity.

But, Crews acquired, by his purchase, no right to the crops growing at the time on the land. The rule of the english court of chancery, referred to by Mr. Johnson, can rarely be applicable, in this country, whpre lands are seldom let out upon leases, rendering a certain rent, payable at stated times; and can hardly, by any ingenuity, be adapted to the present case. This is a case that stands on its own peculiar circumstances. The decree of foreclosure gave Crews a right to require the sale of the mortgaged subject, immediately after the 18th November 1822; and Long was entitled to hold the subject, until the marshal should make sale of it under the decree. The mortgagees had perfect control over the sale: the marshal was bound to proceed when they required him to do so, and was not bound to proceed until so required.

Long, then, was in *fact left in the possession and enjoyment of the subject from November to June, by permission of the mortgagees: he had their consent to employ, in sowing and planting the crop, the slaves &c. which were mortgaged to them: he devoted to the tillage his own industry also, which was not mortgaged. The general creditors of Long have certainly a right to have the fruits of his industry applied to the satisfaction of .their just demands; but these, with the acquiesence and by the permission of the mortgagees, have been inseparably mingled with the profits of the mortgaged • subject. Crews is asking now, not only the profits of the mortgaged subject, but the profits of Long’s industry. He does not ask, that his rights as purchaser of the subject, shall relate back to a quarter day from which rent began to accrue: he asks the court to attach those rights to the subject from the time when Long, with his own permission, sowed the crop.

Long was strictly entitled to the growing-crops, as emblements. A mortgagor in possession, after default of payment, is a tenant at the will of the mortgagee; much more is a mortgagor in possession, after a decree of foreclosure, which the mortgagee may enforce when he pleases, tenant at will of the mortgagee. Why should not he, as well as any other tenant at will, be entitled to emblements? The only reason suggested, is, that the proceeds of the growing crops are to be applied to the payment of the debts secured by the mortgage. But Crews claims the crops as his own; and it is only as a favour to the mortgagor, or the other mortgagees, that he declares his intention to apply them to the reduction of the debts. He cannot exercise his bounty at the expense of Long’s other creditors. He can only claim as a purchaser at the sale: he cannot fortify that claim, by uniting with it his original claim as a mortgagee. If any other person had been the purchaser, could he have availed himself of Crews’s sudden determination of Long’s tenancy at will, and claim the growing crops? If not, neither can Crews.

. *If Long was entitled to the growing crops, the appellees’ execution was rightly levied on them. In all events, they are entitled to have the profits accruing from those crops, apportioned between Long and Crews, and to have Long’s portion of them, applied to the satisfaction of their claim .against him.

*

Judicial Sales — When Absolute. — In Cocke v. Gilpin, 1 Rob. 39, and note, it is said a purchaser at a judicial sale acquires no right until a confirmation of the sale by the court, and until the order confirming the report, he is only inchoately and not absolutely a purchaser having till then no fixed interest in the subject. That such is the English doctrine is well settled. The same doctrine has been recognized by this court in several cases, *Crews v.*Pendleton, 1 *Leigh*Heywood v. Covington, 4 Leigh 373; Taylor v. Cooper, 10 Leigh 317, from the first of which it will be seen that before the confirmation of the report and conveyance of the title, the purchaser must resort to that tribunal in which the proceedings were had, for the adjustment and enforcement of his claim. For this last proposition the principal case is cited in the last named case and Terry v. Coles, 80 Va. 703. See also, citing the principal case on the first proposition laid down, *foot-note*to Hudgins v. Marchant, 28 Gratt. 177: Kable v. Mitchell, 9 W. Va. 515; Childs v. Hurd, 25 W. Va. 533. See monographic *note*on “Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.

†

Sale of Land — Growing Crops. — For the proposition that, if land is sold without any reserve, all the crops, not severed, will pass to the purchaser, the principal case is cited and approved in Kerr v. Hill, 27 W. Va. 605, 614. See monographic *note*on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.

*

Ingraham’s edition, Philadelphia, 1820.

CARR, J.

The order of dissolution does not state the ground on which the chancellor proceeded: it must have been, either, 1. that he had no jurisdiction; or 2. that there was fraud; or 3. that the purchase of Crews gave him no right to the growing crops.

Upon the ground of fraud, I can hardly suppose the chancellor acted. His decree in the first suit (acquiesced in by all, and to which the appellee Pendleton is stated to have been a party] had pronounced the mortgage fair, decreed their debts to the mortgagees, and ordered a sale. If the allegations in the answer of the use by Long of the crops, of his continued possession, and of a fraudulent combination between him and Crews, had raised suspicions in the mind of the chancellor, of the fairness of the transactions subsequent to the decree ; he surely would not have taken these allegations (not responsive to the bill) as proofs, but would have given time for the taking of evidence. He would not have dissolved the injunction the very day after it was granted.

As to the question of jurisdiction (though few are more jealous of equity on this point than I am) I think there can be no doubt about it. The chancellor had decreed a sale of the mortgaged property: under that sale, Crews had bought, and received possession from the officer of the court: the whole matter was still pending. If the marshal had made his report, the court had not acted upon it. The order of sale did not authorise the marshal to make a deed to the purchaser, but merely to sell for cash, pay the debts due the mortgagees, and report his proceedings to the court. Crews’s purchase *111did not give him the legal title till the '^chancellor should confirm the sale, and a deed should be made to him. Till this was done, it was the bounden duty of the court, to protect the purchaser. In contemplation of law, the property was still in possession of the court. The application to the chancellor, then, was the na.tural and proper resort.

With respect to the growing crops, the question does not seem to me to involve the general doctrine of emblements, but to depend on the particular contract of the parties. There can be no doubt, that if one sell his land without any reserve, all the crops, not severed, will pass to the purchaser. They are a part of the subject, and enter into the price. The contract between the mortgagor and mortgagees is, in effect, this: “I convey you my land, slaves &c. as a security for the debts I owe 3'ou; 1 bind myself to pay you those debts by a given time, and if I fail, you may proceed, and get a decree for a sale of the subject; meantime, I remain in possession, use the slaves, and take the profits of the land; but, whenever you get a decree, you ma3' immediately sell every thing.” Under this agreement, if the mortgagor goes on and makes preparation for a crop, he does it with a full knowledge, that the land with the crop is subject to be sold, if the decree be obtained before he severs it. Nor does he lose any thing' by this: for the crop on the land enhances the price; if by this increase, the debt be overpaid, he gets the overplus; if not, stilt the full value of his labour goes (as he had agreed it should go) to the payment of the debts secured by the mortgage.

In this case, such a result seems the more just, as the crop was prepared with the mortgaged slaves, and as (the sale being in June) a great portion of the labour in producing, gathering, and saving the crop, was performed by the purchaser.

The other judges concurred: and -the decree was reversed, and the cause remanded, that the injunction might be reinstated.