The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-09-20

u, my oSSu OF trust, on the bth day OF
March,. 1891 sold and conveyed the land
70 Z. lsomlutisis. who. on March "a. lsgi
MED this suit in form OF trespass TO Try
utlc TO recover possesslon OF tho land. at
the same time suing out a writ OF seques-
trauon under which the land and GROWING
crops thereon were seized by the sherifl,
and defendants having failed to rcplevy
same within the ten days allowed by law.
We plantin, on the 18th day of March,
M, eNeoutci replevy bond aud took
possession OF land and crops. the re-
peNy bond was executed and made pay
able TO Isaac Shcro and ID. W. Cloud.
who were the only defendants named IN
inc original petition, the said CLOUD hclag
n hired man residing upon and having
charge OF the promises and crops a, the
TIME OF tho levy.
ON the So,h of April. 1884, Plaintiff LON
hardi filed h supplemental petition making
Charles Shcro party defendant to the
SUIT, alleging that he was asserting claim
to the growing crops on the lnud, but
that his claim was void for fraud etc
Charles Shero answered that he WAS tho
owner of the crops, which consisted OF los
acres sowed In wheat and 40 acres In oats
NJ the date OF the levy Of the writ OF SEE
Qucstrhtion; that he had purchased tho
same from Isaac Shcro In good faith and
paid him therefor before the foreclosure
sale. and that the said crops were Of the
value cf slloo. and that by reason Of the
seizure and conversion he was damaged In
ito sum OF SltN lie also sc's M the re-
plcvy bond executed by c. lombard, as
principal und VIM. II. Cleveland and
Lombardi otsalned possession OF the crops
and prays for Judgment sRains, the cure
ties on tho bond for the value OF the crops
aforesaid.
Tho record aiscloscs that on the 10th OF
January 1894, Isaac Shero was owing his
brother Charles Shero a balance on two
years work of $3.50. and that he sold said
crops 10 his hrosher to satisfy that In
debtedness. and Cloud WIS informed of ;nc
sale and transfer and directed to hold and
take care OF the crops for Charles Shero,
which he agreed TO do and dld until the
sherin seized them and 1lspossossel hin,
ON the 9Th OF March, 1884.
ON the triad of Che cause by the court.
without jury. judgmens was rendered. In
favor of Charles Shero for $500 ~ against
4. Lombard, as principal on the replevy
bond, and also against VIM. u. Cleveland
and charles Elsbury as surcties thereon.
that being the value of the crops after de-
Quoting She costs of harvesting and thru sh-
ing them, and Iomhardi, as Well as thc
said suretica has appealed to this court
and among others assign as error the ron
drring Of Judgment ON the reploNy bond
AGAINST the suroties, because the bond was
not payable TO Charles Shero, and that The
was not q party 10 the suit at the time
tho bond was executed.
Tha assignmcnt is well taken. because
the bond was not payable TO Cha les Shrro,
and ho could ms have tho statutory JndE-
ment provided for IN such cases. tor did
lac have any right of acton therein At
common law for the same reason. He had
n remedy rs ainst g, Lombard tor the tort
IN selling and converting the property. Ia
which caso all pcrsous aiding or assisting
LumbarN IN such seizure would be Jointly
and sovornly liable
But our C,hrr question remains. and that
is whcther the Judgment against g. lom-
bardl, under the facts In this case can he
permitted To stand
Ccuccdmg that lombard, by taking The
m1rtcage to secure his note elected 10
make his conveyance OF dtie To the land
absolute in Rogers. and to rely upon his
mort Rugc Hen for security 60 his note, th"n
wha, are the rights OF the PARTIES lsom
hardi had his mortgage lien upon the land.
tn tho hands OF Isaac Shero. for Isaac ba1
know ledge OF this lien AS u vendors len
and promised 30 pay IT, Isaac became by
his pure base from Rogers. the owner of
the land. AMI whatever crops he plane "a
on the land became a part of the lund
the moment they wCtc planted ana the
lien OF lomb1rdi attached Instantly TO
such crops. subject however to tho right
of the mur tEaBor or his tenants ~ pnr-
chasrrs to gather and remove the crops
after they should become mature enough
to sever from che sol, If they should ar
rye at that stage of maturity prior t. the
divcstiturc OF title Of the mortBn6or 10y
The foreclosure proceedings.
In this ease the titlc OF the land was iii
ycs,,el Out OF Isaac Shcto the owner and
mortGaeor. and invested I'm g. lunlitril
by the sale and conveyance OF the land
made by AshhS :. james under tho ute 4
Of truss, on The 6ih day Of March, lNN and
the title to all crol fhon planted or stand
ing mature enough TO be gathered or hur-
vested. passed with the land o lombard.
because the morig tgc lien having attached
20 them the instant they were pui IN the
ground, Isaac Shoro had no more power
to sell them clear OF the mortgage than
he had 10 sell the land clear of the mort
gage. and when Charles bought the crops
on January 49, 1894. he bought them subject
10 the mortgage on the land, they then
being part of the land
II the foreclosure .ulc hy James had
not been made until after these crops were
mature onCn eh 20 he covered from the oil
although not actuhlly severed. then
Charles would hive n ainoreni case. as
we are inclined TO think but there n no
claim made by him IN this cnve that they
were mature on the 9Th day of March
and hence we are clearly OF opinion that
ihesc croEs being immature, formed part
OF the freehold and that the title thereof
passed TO lombard with the land 2
Jones on mortgages OH clD sectiou lGbS
caldwell Va. Alsop. IS Kan, b7i: 20 pnc.
Rep, 1850, Richards vs. knsh,. Is iowa.
80. a. y. w. Rep. bSi; llecht vs. Dottmln,
b Iowa, 679, n. w. Rep io5, 10 N. W..
Rep. "a
We nre therefore Of opinion that the
judgment In this case ought 80 he re-
vorsed. and that Judgment be hero rem
dered for G.. lombard for the land, and
that Charles Shero take nothing by reason
OF HIS cross action, but that re pay an
COTS In both courts occasioned by him,
and " IL ordered accordingly.
Hunter. associate justice.