Appellant has petitioned for a rehearing. It contends that the former opinion in effect holds that the doctrine of emblements is limited to situations arising out of a landlord and tenant relationship; that the doctrine is not so limited, and that it applies with equal force in other situations where no true relationship of landlord and tenant is involved, such as the one presented where a life tenancy is terminated and there are then growing annual crops which have been planted by a subtenant with rent payable to the life tenant in the form of a share of the crop. In support of the contention, attention is called to the decision of the Supreme Court of *Page 370 Nebraska in the case of Re Mischke, 136 Neb. 875, 287 N.W. 760, 125 A.L.R. 277, and a statement in 15 Am Jur 216, Crops, § 24.
The quotations from Thompson on Real Property, set forth in the former opinion, were adopted because they quite pertinently show the origin and the general application of the doctrine of emblements. As we read them, such quotations do not in any manner indicate that the doctrine of emblements does not apply to a life tenancy; and under the common law from which the doctrine stems, it was deemed applicable to a life tenant and to a subtenant of the life tenant. 1 Co. Litt. 55b; 2 Blackstone's Commentaries, 122, 1 Cooley's ed. 527.
The authorities that are cited in support of the petition for rehearing, we think, lend no support to the contention that the doctrine of emblements entitles the county to the share of the crop which the tenant agreed to pay the county as compensation for the use of the land.
Re Mischke involved a situation where a life tenant rented the tract of land in which she had a life estate on terms whereby she was to receive a certain share of the crop as rent. The lessee planted the crop, and harvested the same after the life tenant died, and the question arose whether the executor of the estate of the life tenant or the remaindermen were entitled to receive the share of the crop which the lessee had agreed under the lease to pay to the life tenant as compensation for use of the land.
The statement in American Jurisprudence (15 Am Jur 216, Crops, § 24) on which appellant relies is as follows:
"Emblements are corn and other crops of the earth which are produced annually, not spontaneously but by labor and industry. A distinct and well-defined doctrine commonly known as the doctrine of emblements or away-going crops has been developed in reference to the ownership of such crops in the event of the termination under certain conditions of the estate or tenancy of the person who planted them. The doctrine is fundamental in respect of the relationship of landlord and tenant, but, as hereinafter appears in reference to life estates, it has been applied in some situations where no true relationship of landlord and tenant was involved. The doctrine or right of emblements entitles one who holds land for a period subject to termination at a time which he cannot ascertain beforehand to remove from the land after *Page 371 the termination of his tenancy the annual crops or emblements which he has planted thereon prior to such termination, if the termination is brought about without any fault on his part or without any act of his intended to bring about such a result. The doctrine allows the tenant to enter upon the land, to cultivate his immature crops, and harvest them when they become mature, but this right is merely one of ingress and egress for necessary purposes. It does not constitute a right to the possession of the land. For all purposes other than permitting the tenant to give due attention to and gather his crop, the reversioner has the right to the exclusive possession of the land. Nor does the right include more than one crop a year from the same stubble. The basis of the doctrine is the justice of assuring to the tenant compensation for his labor, and the desirability of encouraging husbandry as a matter of public policy."
No good purpose would be served by attempting to collate or analyze the many cases in which the doctrine of emblements has been invoked. The basis for the doctrine, and the fundamental conditions which warrant its application are well set forth in the foregoing quotation from American Jurisprudence, and in the quotations from Thompson on Real Property in the former opinion. In this state, the doctrine is recognized by statute (Laws 1913, § 5343) and has been made applicable to tenancies and situations where the application of the common law doctrine might be doubtful. (2 Tiffany, Landlord Tenant, § 251, p. 1636, note 54.)
We are unable to see any basis for the application of the doctrine of emblements, so as to entitle the defendant county to the share of the crop, which the lessee agreed to pay as compensation for use of the land. The county was the owner of the land. It did not plant a crop. It rented the land to Knox. The county furnished only the use of the land. The person to whom the land was leased did all the rest. He produced the crop. He agreed to pay a certain amount of the crop which he produced as rent for the land. The rent was to be paid after the crop had been threshed. Before the crop was matured the lessor (county) sold and conveyed the land to the plaintiff by a deed, which according to its terms operated to transfer to the plaintiff (the grantee named in the deed) any interest and right that the grantor might have *Page 372 in crops then growing upon the land, or any right and interest the grantor might have in unaccrued rents. Under the express terms of Comp. Laws 1913, § 5343, the lessee (Knox) had the right to go upon the premises and carry on the work necessary in caring for the crop, and harvesting, threshing, and removing the same. His right to do so has never been questioned. He harvested and threshed the crop. The fundamental purpose of the doctrine of emblements — "The justice of assuring to the tenant compensation for his labor, and the desirability of encouraging husbandry as a matter of public policy" (15 Am Jur 217, Crops, § 24; 2 Tiffany, Landlord Tenant, p. 1632) — has been met.
Appellant further contends that chap. 237, Laws 1939 — the law under which the county rented the land to Vernon Knox — in effect extended the doctrine of emblements so as to render the same applicable in favor of the county, where under the lease a share of the crop is to go to the county for rent.
Section 1 of the Act provides that (with certain exceptions which are not material here) the county commissioners shall have authority to lease lands which the county has acquired pursuant to tax deed proceedings. The act further provides:
"Sec. 2. All leases of such lands shall be made subject to sale and shall be limited in duration to a term of not to exceed five years; provided, however, that, in the discretion and sound judgment of said county commissioners, any piece or parcel of grazing land may be leased for grazing purposes without being subject to sale and for a term of not to exceed ten years to any duly incorporated cooperative grazing association or to any duly incorporated soil conservation district, or to any individual within this State.
"Sec. 3. Said county commissioners shall not expend more than ten per cent of the total revenue collected from all such leases to defray any and all costs in connection with the supervision and collection of the rentals.
"Sec. 4. All of the net revenue derived from said leases including all Federal payments made in connection therewith, in an amount not less than ninety per cent of the total revenue collected, shall be paid into the county treasury of the respective counties. . . ." *Page 373
Appellant places especial reliance upon § 4 of the act. The contention seems to be that the rights of a former owner, who makes repurchase and obtains a deed, are made subject to the terms of the lease as to the payments to be made by the lessee for use of the land, so that the county has the right to such payments notwithstanding the conveyance of the land by the county.
We are unable to agree with this contention. The statute must be construed as a whole. It must be construed also together with Laws 1941, chap. 286, pursuant to which the land was repurchased, and the deed to the plaintiff given. When so construed, it seems to us to lead to a result contrary from that contended for.
The lease for the lands in question here was of the type which § 2 of the Act (Laws 1939, chap. 237) says "shall be subject to sale." Section 4 (upon which appellant relies) does not say that rent to be paid for the land shall belong to the county. It says: "All of the net revenue derived from said leases . . . shall be paid into the county treasury." This merely provides for the disposition of revenue received; that is, for the disposition of rent received by the county.
The legislative assembly which convened in January, 1941, enacted a rather comprehensive measure relating to the sale of lands to which the county has acquired title by tax deed proceedings. Laws 1941, chap. 286. Such measure provided precisely the conditions under which a former owner of land that had been forfeited to the county under tax deed proceedings might repurchase the same, including the price to be paid therefor. Id. § 19. It further prescribed the form of deed to be given by the county. The language of the deed is set forth in the former opinion. No reservation is made in such deed of any interest in growing crops, or of unaccrued rent.
The principal provisions of the deed are set forth in the former opinion. The language is absolute and unconditional, and under well settled principles the language employed would operate to transfer to the purchaser any and all interest the county might have in any crops growing on the land, as well as any right and title it might have to any unaccrued rent for the land. We adhere to the former opinion. A rehearing is denied.
MORRIS, Ch. J., and BURR, NUESSLE, and BURKE, JJ., concur. *Page 374