On Motion for Rehearing.
The counsel for appellants very earnestly insist that we were in error, at least, in holding that the appellees were entitled to recover the cotton replanted after the sale of the land to 'Sanger Bros. It is contended that our ruling, leads to unreasonable results; that in accordance therewith an owner of land who had given a mortgage thereon might lawfully make a- rental contract extending through a series of years and thereafter assign such contract, and thus deprive the mortgagee in a large measure of the fruits of his mortgage. Logically this may seem true, but as to this contention we deem it sufficient to say that the case before us presents no such condition. The lease by the landlord here was for but one year, and it will be time enough to determine the supposititious cases when they are presented upon the record. Doubtless, if such a case be presented, some rule of law or equity may be found to prevent injustice. At all events, if we are to be controlled by the cases cited in our original opinion, as we think we must, it seems clear that Mary S. Taylor, the owner of the mortgaged premises involved in this suit, had a clear right to make the rental contract she- did with Watters & Sons, and that, having such right, she as clearly could lawfully transfer it with all of its force to appellees. If so, the tenant was liable for the rents as he had contracted for, both as to the growing crops and as to all crops actually planted and maturing for the crop year, and no action on the part of Sanger Bros, or of the tenants could impair, to any extent, appellees’ right as assignees of Mrs. Taylor.
[5] In deference to a request on the part of able counsel who argued this case, we will also notice the further contention, not heretofore presented, that our ruling is violative of the Fourteenth Amendment of the Constitution of the United States, in that it amounts to taking of property without due course of lavy. We will not enter upon any extended discussion of the subject, but will merely say as to this that from an early date in this state, unlike as at common law, the mortgagee of lands is but a lienholder, the legal title yet remaining in the owner of the mortgaged premises, with an unimpaired right to lease and obtain the emblements in the way of growing crops. See Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534; Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284, where the subject is fully discussed. This being true, we cannot see that Sanger Bros, have been deprived of any right for which they contracted. The rule of law referred to was in full force in this state at the time they took then-liens upon Mrs. Taylor’s premises, and the trust deed lien therefore was affected by the rule as fully as if it had been written in the trust deed. By a very familiar rule of construction, 'Sanger Bros, must be held to have known at the time they took their trust deed that Mrs. Taylor had the lawful right to make the rental contract as she did, and had the further right of assigning such contract to others.
[6] Under such circumstances, we know of no- decision of the United States courts which goes so far as to hold that such subsequent lease and assignment of Mrs. Taylor was a taking of appellants’ property, or an impairment of their security within the meaning of the elause of the federal Constitution referred to. Indeed, we do not see that such subsequent rental contract and assignment in fact impaired appellants’ security. The security was the land owned hy Mrs. Taylor, and not the crops involved in this suit, and nothing in the evidence in this case even tends to show that the land at the time of its sale under the trustee process to appellants was not, in fact, of much greater value than the debt to secure which the trust deed had been given.
We conclude the motion for rehearing should be overruled.