We dissent. In our opinion, the doctrine of the case of UnionCentral Life Ins. Co. v. Jensen, 74 Mont. 70, 237 P. 518, is controlling as respects the rights of the parties to this action. Kester having made purchase of the real estate at decretal sale, as such was entitled to the immediate possession of the premises upon the presentation of the sheriff's certificate of sale and demand made upon the occupant for possession. The tenant took the property with constructive notice of the mortgage thereon, and the terms and conditions thereof, so that he should not be heard to complain because of being dispossessed before the expiration of his lease of the property from the owner. (Penryn Fruit Co. v. Sherman, 142 Cal. 643, 100 Am. St. Rep. 150, 76 P. 484.)
In the case of Isbell v. Slette, 52 Mont. 156,155 P. 503, it was by this court correctly held that a "chattel mortgage upon crops thereafter to be planted cannot operate as an encumbrance upon the land, where the crops are to be grown, and therefore, in the present instance, Geo. D. Isbell, after the execution of this mortgage and before any crops were planted, might have sold his homestead to a third party, and the purchaser could not have been held bound by the mortgage, and a lessee is in no worse situation. This is the rule followed by the great weight of authority, and commends itself to our judgment. (Simmons v. Anderson, 44 Minn. 487, 47 N.W. 52; McMaster v.Emerson, 109 Iowa, 284, 80 N.W. 389; Reeves Co. v.Sheets, 16 Okla. 342, 82 P. 487; Jones on Chattel Mortgages, 5th ed., sec. 143a.)" *Page 16
"A mortgagor compelled to surrender the estate is not, like a tenant at will, entitled to the emblements, though produced by the mortgagor's labor. The mortgagee may evict him without notice, and retain the emblements. A lessee holding under the mortgagor by a lease granted subsequently to the mortgage, and without the mortgagee's concurrence, has no greater rights than the mortgagor; and when evicted by the paramount title of the mortgagee, as he may be without notice, he cannot retain the emblements. A purchaser at a foreclosure sale is entitled to the crops growing at the time of the sale, and may maintain trespass against the mortgagor of his lessee for taking and carrying them away." (Jones on Mortgages, 2d ed., sec. 698.)
"Under the statute a purchaser at a foreclosure sale is entitled to possession of the premises from the day of sale, unless they are in the possession of a tenant holding under an unexpired lease, and in such case he is entitled to receive the rents or the value of the use and occupation thereof, and, if the annual crops are not severed from the soil prior to the sale, they pass, with the title, to the purchaser, as against the mortgagor and parties claiming an interest therein under him subsequent to the mortgage. (2 Jones, Mortg., sec. 1568; 1 Washb. Real Prop. 144; Wiltsie, Mortg. Forec., sec. 587; 8 Am. Eng. Enc. Law, (2d Ed.) 303; Batterman v. Albright [122 N.Y. 800],25 N.E. 856 [19 Am. St. Rep. 510], 11 L.R.A. 800, and note;Heavilon v. Bank, 81 Ind. 249.) This is elementary law, and is not questioned by the defendant, but his contention is that the giving of the chattel mortgage to the ditch company by Hall, prior to the sale under the foreclosure decree, was a constructive severance of the growing crops. There is authority for such view. (Willis v. Moore, 59 Tex. 628 (46 Am. Rep. 284); White v. Pulley (C.C.), 27 Fed. 436.) But it does not commend itself as the better one. The general rule of the common law is that growing crops form a part of the real estate to which they are attached, and follow the title thereto. They are, however, for many purposes, regarded as personal property, and subject to voluntary sale or mortgage *Page 17 by the owner (Reed, St. Frauds, sec. 708); but the right of a purchaser or mortgagee is subject to the contingency that it may be wiped out by a foreclosure and sale under a mortgage given by the vendor or mortgagor on the land before the crop was sown, unless it is severed from the soil prior to such sale. (Sherman v. Willett, 42 N.Y. 146.) A real estate mortgage is not only a lien upon the land, but also upon the annual crops growing thereon, unless they belong to a tenant, subject only to the right of severance prior to the sale and entry under the mortgage. (1 Jones, Mortg., sec. 697; Rankin v. Kinsey,7 Ill. App. 215.) Unless there is an actual severance, the crops pass with the title to the soil to which they are attached as against the mortgagor, and a previous sale or mortgage by him will not constitute a severance as against a purchaser at the foreclosure sale. The test is whether there has been an actual severance. If so, the crops become personal property, and do not pass to him who purchases the land subsequent to the severance; if not, they go with the land. (Anderson v. Strauss, 98 Ill. 485; Shepard v. Philbrick, 2 Denio [N.Y.] 172 [174]; Crews v. Pendleton [1 Leigh 297] 19 Am. Dec. 750, and note;Beckman v. Sikes, 35 Kan. 120, 10 P. 592; Gillett v.Balcom, 6 Barb. [N.Y.] 370.)" (Jones v. Adams, 37 Or. 473, 82 Am. St. Rep. 766, 50 L.R.A. 388, 59 P. 811.)
In our opinion, upon the refusal of the tenant, upon demand, to surrender possession of the property to the purchaser at execution sale, the tenant became an involuntary trustee of the landlord's share of the crop for the use and benefit of such purchaser (sec. 7887, Rev. Codes 1921), for "that which ought to have been done is regarded as done in favor of him to whom, and against him from whom, performance is due" (Id., sec. 8758).
The decree of sale provides that the purchaser or purchasers "be let into possession of said premises, and any of the parties to this action who may be in possession of said premises * * * shall deliver possession thereof to the purchaser or purchasers on production of the said sheriff's certificate of *Page 18 sale." The property was sold under the decree to the plaintiff on April 28, 1925, and a sheriff's certificate of sale was thereupon delivered to him. The day following, the plaintiff visited the premises, exhibited his certificate of sale, and demanded possession of the premises of the defendants, which was refused. Thereafter, on May 13, 1925, the plaintiff applied to the district court for a writ of assistance, which was finally issued to him by this court on July 14, 1925. (State ex rel. Kester v.District Court, 74 Mont. 100, 238 P. 875.) However, it was not executed by the sheriff until August 4, 1925, after the crops had been severed by the tenant in possession. The tenant holding possession of the land after demand made upon him by the mortgagee was neither a tenant at will nor by sufferance, but rather a mere trespasser. (Power Merc. Co. v. Moore Merc.Co., 55 Mont. 401, 177 P. 406.)
The judgment should be reversed.