Since Eaves v. Sheppard, 17 Idaho 268, 105 P. 407, 134 Am. St. 256, was overruled by Devereaux Mtg. Co. v. Walker, 46 Idaho 431,268 P. 37, it has been the settled law in this state "that a co-ownership is created between the land owner and the grower in all crops grown by the latter while in possession of land under an agreement by which he covenants to deliver a portion of such crops to the owner of the land." The author of the latter opinion collected and cited a number of cases showing that to be the majority rule in this country.
Leasehold contracts, like the one involved in this case, construed in the light of Devereaux Mtg. Co. v. Walker, and subsequent Idaho decisions cited in the majority opinion herein, not only create the relationship of landlord and tenant between the parties thereto, but make them co-owners in the crop to be raised on the land leased by one to the other. The landlord's interest in the crop attaches, by virtue of the contract, at the time it is planted. It is a present, undivided interest, but he does not become entitled to possession until the crop has been harvested. However, it is an interest in the crop, not a right to recover the value of a share in it, which he is to receive in payment for the use and occupancy of his land by the tenant. It is settled law in Idaho that the tenant cannot sell the entire crop and thus defeat the landlord's right to his share of it. The landlord's interest is a present one — not prospective. His right of possession, only, is postponed until after harvest.
The complaint in this case, to which the demurrer was sustained, shows the foreclosure sale took place May 25, 1936, and respondent became the purchaser thereat and received a sheriff's certificate of sale for the mortgaged land. At that *Page 436 time the wheat involved in this action was the landlord's part of a growing crop on the land.
I. C. A., sec. 8-310, is controlling. It provides:
"Upon a sale of real property the purchaser is substituted to, and acquires all the right, title, interest and claim of the judgment debtor thereto; and all his right, title, interest and claim thereto at any time during any subsisting lien thereon by attachment in the action, or by the docketing of the judgment. . . . ."
Section 54-101 is as follows:
"Real property or real estate consists of:
"1. Lands, possessory rights to land, ditch and water rights, and mining claims, both lode and placer.
"2. That which is affixed to land.
"3. That which is appurtenant to land."
Section 70-114 contains this provision:
"The following words have, in the compiled laws, the signification attached to them in this section, unless otherwise apparent from the context: . . . .
"2. The words 'real property' are coextensive with lands, tenements and hereditaments, possessory rights and claims."
From this it will be seen the words "real property," as used in sec. 8-310, are to be given the same meaning they had at common law.
It is not questioned that the overwhelming weight of authority in this country is to the effect that growing crops are real estate, subject to conveyance as such, and, in the absence of contract to the contrary, pass by deed from the owner of the land to the purchaser thereof; also that title to such crops passes to the purchaser of such land at judicial sale. The difficulty in this case arises from the fact that the land had been leased by its owner for crop rental, and our court has followed the Supreme Court of California inClarke v. Cobb, 121 Cal. 595, 54 P. 74. The part of the California opinion which apparently is deemed to be controlling by the majority of this court is reflected in section 2 of the syllabus to that case:
"2. In the absence of appropriate words in a lease reserving part of the crop as rent, to indicate that the crops are *Page 437 to be held in co-tenancy, the products to be delivered to the landlord after harvest will be deemed the property of the tenant until that time."
The fallacy of that holding is at once apparent when we consider that, if it be true, the tenant might sell the landlord's share of the crop and give title to it to a third person. As heretofore pointed out, the Idaho cases are conclusively to the contrary.
Apparently, the California court was led into error by the concession referred to in the first paragraph of its opinion quoted from in this case. It is as follows:
"It is conceded by all parties that the merits of this litigation are dependent upon the construction to be given that portion of section 707 of the Code of Civil Procedure which provides: '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.' "
It never should have been conceded that said section was controlling in that case, and I do not concede our sec. 8-407, which is its equivalent, is controlling in this case. That section has to do with rents, generally, and has nothing to do with fixing the ownership of growing crops.
The controlling sections in Idaho, are 54-101 and 70-114, which define real property as "coextensive with lands, tenements and hereditaments, . . . ." and sec. 8-310, which declares: "Upon a sale of real property the purchaser is substituted to, and acquires all the right, title, interest and claim of the judgment debtor thereto."
What was the right, title, interest and claim of appellant, the judgment debtor, in this case? It was the ownership of the mortgaged land, which included her undivided interest in the growing crop thereon. She acquired title to her interest in the crop when it was sown, and should be held to have lost it by foreclosure sale, subject to the right of redemption, before her right to possession of it accrued, because it was a growing crop on the mortgaged land and a part thereof when the land was sold. *Page 438