This motion for rehearing must be granted, on account of error in our decision of the question involving the right of Charles Shero to recover from Lombardi for the value of the growing crops seized and converted by him under the sequestration proceedings in this case.
In the case of Willis v. Moore, 59 Tex. 629, which we overlooked, we find that our Supreme Court carefully and fully considered the question here involved, and there quote with approval the opinion in the case of Hogsett v. Ellis, 17 Mich. 363, as follows: "A mortgagor is entitled to sever in law or in fact the crops which stand upon his lands at any time prior to the destruction of his title by sale under the mortgage; this results from his ownership and consequent right to the use and profits of the land, and the mortgage is taken with knowledge of that fact."
The court also cites and quotes from the case of Metzgar Crugg v. Hershey, 90 Pa. St., 218, as follows: "A purchaser of land at sheriff's sale is entitled to the growing grain thereon, which had not been severed before the sale. * * * The test is whether there has been a severance of the growing grain; if so, it does not pass to him who purchases the land subsequent to the severance; if not, it goes with the land."
Our Supreme Court then adds that, "All these cases" (cited in opinion) "recognize a sale by the owner or by judicial process, if made before the sale of the land, as a severance."
True, in the case of Willis v. Moore, supra, the foreclosure sale was not made until the 8th of September, and the court say that the crops — corn and cotton — were "nearly or quite mature;" yet from the reasoning of the court we conclude that the rule there established applies equally to this case, where the foreclosure sale was made March 6, and there is no contention that the crops — wheat and oats — were even approaching maturity.
While this conclusion seems rather at variance with, and leads us to ignore, the contract of the parties in the case at bar, fixing the maturity of the debt on January 1, 1894, and the consequent right of the mortgagee to then foreclose by sale and immediately take possession; yet we *Page 598 consider that such is the settled law in this State, and we therefore do not hesitate to apply it.
We therefore sustain appellee's motion for a rehearing herein, and overrule all that part of our former opinion in conflict with the views herein expressed, and order that the judgment in this cause as rendered by the District Court be in all things affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.