In our opinion, the lower court did not err in overruling the special exceptions of plaintiff (appellant) to that part of the amended answer setting up the right of defendant to the crops on the seventy-five acres. *Page 264
The mortgagor Lock had leased the premises to Leath, the defendant, for the year 1895, and had received the rent before the foreclosure sale under the Lock deed of trust, of date June 4, 1895. The lessee had, under his lease, cultivated the land, and at the time of the sale the crop of cotton and corn was maturing and some of it matured. The lease severed the right to the rents from the realty, and the sale of the land under the deed of trust did not carry the title to the rents or the crop on the premises standing at the date of the sale, whether mature or not; the lessee had the right of ingress and egress for the purpose of gathering and preparing the crops for market or use. This is no longer an open question in this State. Willis v. Moore, 59 Tex. 629; Trust Co. v. Gill, 8 Texas Civ. App. 358[8 Tex. Civ. App. 358]; Lombardi v. Shero, 37 S.W. Rep., 613.
The fact that the tenant had notice of the mortgage by its record is immaterial. It is the right of the mortgagor, before foreclosure, to sever the rents from the reversion. In this case it was done by granting the lease.
In the case last above cited, the court at first decided that the purchaser at the foreclosure sale having acquired title to the land, thereby took title to the unmatured crops. On motion for a rehearing, however, upon the authority of the case of Willis v. Moore, the court granted a new trial and affirmed the judgment of the lower court, holding the doctrine of the right of severance as above stated.
We agree with the court below, that defendant was not bound to hire his children out in order to make up the loss of their time in gathering the crops, which was interfered with by the plaintiff's writ of sequestration. We believe, however, the defendant himself would be bound to seek other employment, and use reasonable diligence to secure it, to prevent damage to plaintiff by his loss of time.
We do not believe that defendant was entitled to recover under the proof for the loss of time of his children in gathering the crop, at least that part of it that was gathered, and the verdict was excessive upon this issue. Plaintiff paid defendant for the picking of cotton by the children; the jury awarded defendant the value of the cotton as lint cotton. This value would include the cost of picking, and hold plaintiff to pay for it twice. The jury also allowed defendant an item, "9 days' work, children picking cotton at $4, $36." The verdict then allows plaintiff a credit of $30.20 for picking and hauling the cotton to the gin. The error in the verdict is evident. Defendant was paid twice for the picking of the cotton. We can not see how the defendant was damaged by the loss of the time of his children in picking the cotton, at least the cotton that was picked, because he testifies that the plaintiff's agent paid him for that work. He would be allowed only for loss of time it would have taken them to pick the cotton that was wasted by seizure under the writ of sequestration. We believe the verdict is clearly excessive in the item mentioned and in allowing defendant $6 for gathering the corn. Defendant was paid for gathering the corn, a part of it, 210 bushels, in this way: The corn was worth 20 cents per bushel. He purchased the 210 bushels *Page 265 of corn from plaintiff at 15 cents per bushel, plaintiff allowing him 5 cents per bushel for gathering it, making up the value, 20 cents per bushel. The jury allowed defendant 20 cents per bushel for the 300 bushels gathered, and the same price for the 25 bushels wasted. There is evidently error in the verdict awarding defendant 20 cents per bushel for the corn. He can not recover damages for more than he paid for the 300 bushels of corn. Field v. Muenster, 11 Texas Civ. App. 341[11 Tex. Civ. App. 341]; Muenster v. Fields, 89 Tex. 102.
The amounts so improperly awarded by the jury would affect the verdict as to interest. The verdict was excessive in the particulars mentioned. Defendant entered a remitter of $13.97, but clearly this is not sufficient to cover the excess in the verdict. The court should have granted a new trial, because of excessive verdict.
Because of the errors pointed out, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
[December 22, 1897, on the filing by appellee of a remittitur of the sum of $43.13, and by consent of parties made with a view of securing a final disposition of the case, the judgment was reformed and affirmed in favor of appellee for $165.41, and thereupon, in view of an intended application by appellant for writ of error, the court made the additional findings of fact hereafter given. The application was made and writ of error was refused.]