In this case I am compelled to dissent. I cannot concur either in a reversal of the judgment of the- District Court, or in the reasoning upon which that result is accomplished. It would seem that a majority of the court are inclined to base plaintiff’s right to recover chiefly upon supposed rights which the plaintiff secured as purchaser of the realty at foreclosure sale, and in this the court, in my judgment, is in error. The purchaser, as such, acquired no right either to the rents, or to the value of the use of the premises, during the redemption period. The right to recover is based wholly upon a statute which was expressly enacted to confer *235a right upon purchasers which did not exist as a result of any execution or foreclosure sale of realty. Repeal this additional statute, and no action could be maintained either for the value of the use, or to recover rent, during the period of redemption. Upon this point the Supreme Court of California, in Walker v. McCusker, 12 Pac. Rep. 723, says: “The defendant’s liability is statutory.” And in Shores v. Scott River Co., 21 Cal. 135, the same court, in construing this statute, declares that: “The statute only gives a remedy against the tenant in possession. The right to recover rests upon the statute, and the tenant in possession is the only person against whom the right exists.” It is needless to say that, where a right of action is purely statutory, it is incumbent upon the plaintiff to bring his case within the fair import of the language of the enactment which confers the right of action. In the case at bar the plaintiff has chosen to sue for rent accruing, as plaintiff claims, within the redemption period. The statute authorizes a purchaser to receive the rent, but in suing for rent the plaintiff necessarily assumes the burden of showing that the defendant had undertaken to pay rent, or in some manner had bound himself to do so. It is not enough that plaintiff in this case shows some right of action. He sues for rent, and that alone, and he can recover upon no other theory than that of a re-entry of the premises. It is, however, one of the anomalies of this case that the defendant Edison never had anything to do with renting the premises or with raising the crop in question; nor does the plaintiff claim that Edison ever rented of cultivated the. premises, or agreed to pay rent. The majority of the court have excluded any such idea by placing another person in the position of tenant and lessee, viz: Filson, who, it is conceded, raised the grain in question. Another remarkable feature of the case is that the complaint says nothing whatever about either a leasing or a renting of the premises. While the plaintiff’s counsel and the court agree that the action is brought to recover rent, yet no one can, gather any such idea by a perusal of the complaint or answer. Plaintiff alleges ownership of the grain, and is seeking to recover possession solely as owner. Upon his pleading the plaintiff is bound to establish title in himself, but upon the theory of the plaintiff and that of my associates the plaintiff must recover, if at all, upon the theory that the action is brought, under the statute, to recover rent. If plaintiff expects to recover upon his allegation of title, I maintain that he should show w'hen and by what means he acquired title. From my standpoint, no title to the grain has been shown in the plaintiff. Certainly he gets no title to any grain as a result of his purchase of the realty. Nor does the statute in question give a purchaser of realty at a foreclosure sale a title to any product of the soil. The statute (section 5549) confers the right to recover of the tenant in possession either rent, or the value of the use. This right assuriies and presupposes that all the products of the soil belong to the tenant in possession. This being so, the *236purchaser by virtue of his purchase cannot acquire title to the products raised during the redemption period. But, if the result of the action is to be determined by an adjudication upon the question of title, then it is clear to my mind that the plaintiff should not recover. True, this court cannot upon this record enter upon a consideration of the competitive claims of ownership as between the plaintiff and Edison. No evidence has been transmitted to this court, and hence all questions of fact must be regarded as settled by the findings of the trial court. That court has found as a fact that Edison owns the grain in question. This court cannot, if it were so inclined, alter this finding. It must be admitted that the findings are somewhat obscure with respect to the time at which Edison became the owner of the grain. Nor is it made clear just how he acquired his title. It is stated that Ditton, before the foreclosure sale, gave a quitclaim deed of the premises to Edison, and that the deed was intended as a mere mortgage security. A quit- , claim deed given as security, if drawn in the usual form, would not confer title to the crop, but we are not advised as to any language contained in this particular deed. Nor do we know what, if any, oral arrangement was made between the parties concerning a sale or hypothecation of the grain. The ultimate fact of Edison’s ownership is, however, found, and neither party has sought in any manner to impeach this finding. The duty, therefore, of the trial court was and this court is to apply an elementary rule of law applicable to such a finding in a case where the right of possession hinges upon ownership. It is this: Ownership of personalty confers a right of possession upon the owner unless some superior right of possession is shown. In this case the issue is squarely made in the pleadings, and neither party alleges any right of possession other than that based upon his allegation of ownership.
But, turning to theories (viz: theories arising wholly outside the allegations of the pleadings), we first encounter the theory that Filson was a tenant for years, and that he raised the grain in question as tenant under a written lease of the premises. My Brother Bartholomew has written a concurring opinion in which the conclusion is reached that the written agreement under which Filson raised the crop is a lease, and that Filson occupied the relation of a tenant, and was bound by a lease to pay a stipulated rental for the use of the land. A very careful consideration of the,same instrument has led me to an opposite conclusion. As I read the instrument, it was framed for the express and easily recognized purpose of avoiding and steering clear of creating the relation of landlord and tenant. It appears to me to be drawn with an especial view to eliminate all of the manifold advantages which at the common law accrue to a tenant for years under a lease of real estate for farming purposes. At the common law a tenant for years was the sole owner of all the products of leased premises. He could sell or incumber the crops at pleasure. But this contract strikes at the foundation of *237any such claim, by declaring that title and ownership of the crop were reserved and at all times vested in the landowner. True, the landowner bound himself to pay Filson for his services in raising the crop, out of the grain raised by Filson; yet this agreement, until performed, did not operate to transfer title to Filson. Title was expressly reserved to the landowner. Under such an agreement, if the landowner had refused to turn over any of the grain to Filson, the sole remedy of the latter would be an action for damages. See Angell v. Egger, 6 N. D. 391, 71 N. W. Rep. 547. Claim and delivery would not lie in such a case. Again, a tenant under a lease may sublet the premises, unless expressly restricted. Nothing is said in this contract about subletting the premises, nor can such a right be gathered from the language of the instrument; but the party of the first part, Filson, is not permitted to either sublet or assign his rights and duties under the contract. The language is, “This contract shall not be assignable or sublet by the party of the first part without consent of the party of the second part.” Nor can I see in the instrument any language giving any right of possession to Filson, other than such possession as would be necessary to a discharge of his obligation to raise a crop. The only language in the instrument bearing upon the question at all is as follows: Filson agrees, “for the consideration hereafter named, to well and faithfully till the farm during the season of farming in the year 1898, commencing April 1st, 1898, and ending April 1st, 1899, in a good and husbandlike manner, according to the usual course of husbandry.” In this I can discover no purpose of conferring upon Filson any authority to live upon the land, or to occupy the same as a tenant for all purposes. On the contrary, to my mind the instrument, by this language, as well as the other language contained in it, shows that the landowner by deliberate purpose undertook to avoid the consequences of leasing the premises. The intent to make a contract of hiring, as distinguished from one of leasing, is, in my opinion, clearly manifested in the following paragraph of the instrument: “In consideration of the faithful and diligent performance of all the stipulations of this contract by the party of the first part (Filson), the party of the second part (Ditton) agrees, upon reasonable request thereafter made, to give and deliver on said farm the one-half of all grains, vegetables, so raised and secured upon said farm during said season.” The language I have quoted therefore shows the nature and purpose of the contract. Filson agreed to raise the crop at his own expense, and Ditton agreed to compensate him by giving him one-half of the crop, the title to which was at all times in Ditton. At the common law the tenant is the party who agrees to pay a rental. But in this case the most searching examination of the contract fails to show any agreement on Filson’s part to pay any rental, either in money or in grain. Filson’s obligations were to produce the crop at his own expense. It is impossible to spell out of the instrument any obligation resting upon Filson *238to pay rent in any manner. This being true, no action would lie, based upon the contract, in favor of Ditton, to recover any rent. Had Filson, after signing the contract, refused to sow the seed, or, after sowing the seed, refused to harvest the crop, an action for such breach of the contract would lie; but certainly no one would contend that the damages could be measured by any specific amount as rent. No rent having been promised, none could be recovered. It follows, of course, that the plaintiff, as purchaser, could not have acquired the right to sue Filson for rent, for the simple reason that the landowner (Ditton did not have any contract whereby he could himself sue for rent. By the very plain language of the instrument, the obligation to pay rested wholly upon the landowner, and upon no other person. Here, again, the relation of landlord and tenant is squarely reversed and contradicted. At the common law, under a renting contract, it is the tenant who is required to pay, and the landlord receives the pay. My conclusion upon this point is, of course, that the plaintiff cannot recover in this action. He sues for rent, and the facts show that no rent whatever was agreed to be paid.
But another point would, in my judgment, be equally fatal to the plaintiff’s action. Let it be assumed, for purposes of discussion, that Filson was a tenant, and one who had bound himself to pay a rental for the premises. Upon this assumption it is conceded that Filson had paid his rent to his landlord, in full, long prior to the commencement of this action. By such payment, which was made without notice of plaintiff’s rights, if rights he has, Filson was exonerated entirely. The statute of this state makes this point clear. Rev. Codes, § 3543. Now, it is very difficult to see how or upon what theory Ditton could have sued Filson for any rent after the rent had been lawfully paid to him. It would seem that, the obligation having been performed, no action could possibly lie for its nonperformance in favor of any one; and yet this action, aside from the pleadings, is an action to recover rent, and can be sustained on no other basis.
But, aside from all other questions, it is transparently clear that the plaintiff has sued the wrong defendant. The wording of the statute under which the action is brought declares that the purchaser “is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof.” This language is specific and unambiguous as to the party from whom the rents or value of the use are to be received. That party is the “tenant in possession.” According to plaintiff’s theory and that of my associates, Filson, and no other person, is the tenant in possession. It is, moreover, obvious that, unless Filson stands in the Telaition of a tenant, there is no rent in the case, and hence no action would lie to recover it. But the plaintiff has not sued Filson. This is clearly fatal. The statute is not obscure in meaning, and the plaintiff bases his rights upon the statute. Upon this feature of *239the case Shores v. Scott River Co., supra, is directly in point. It is my conclusion that the action was properly dismissed by the trial court.
(83 N. W. Rep. 238.)