On Motion for Rehearing. The effect of our former decision herein is to hold that a mortgage by a landlord on a rent crop not planted severs such crop from the realty when it comes into existence, though not matured, and the rent is not yet due. In this, we think, we were in error. One cannot mortgage that which he does not own, so as to create a lien thereon prior to his becoming such owner. A landlord is not the owner of any part of a growing crop being raised by his tenant before it is divided, or, if there is an agreement to divide, before it is matured and ready to be divided. Railway Co. v. Doke, 152 S.W. 1174; Curlee v. Rogan, 136 S.W. 1127; 6 Cyc. 1048; 11 C.J. 431.
An apparent exception to this rule is where the party raising the crop is "a cropper on the shares." But the exception is only apparent, for in such case the relation of landlord and tenant does not in fact exist, but the so-called landlord and tenant are joint owners of the crop, the owner of the land furnishing the land, and perhaps other things, and the so-called tenant furnishing the labor for the enterprise, in which each by the force of their agreement owns the interest agreed upon from the time the crop is planted. Curlee v. Rogan, supra; Miles v. Dorn,40 Tex. Civ. App. 298, 90 S.W. 707; Rentfrow v. Lancester,10 Tex. Civ. App. 321, 31 S.W. 229. In the instant case there is no question as to "cropper on the shares." The court before whom the case was tried found that King was the tenant of Puckett, and the evidence sustains this finding.
There is a seeming exception to the rule that one cannot create a lien on property which is not in esse, or which he does not own, and that is:
If one executes a mortgage upon such property "it attaches in equity as a lien or charge upon the particular property, as soon as the assignor or contractor [mortgagor] acquires a title thereto, against the latter and all persons asserting a claim thereto under him." Richardson v. Washington, 88 Tex. 339, 31 S.W. 614.
Observe the language, "As soon as he acquires title thereto," but not sooner. In the instant case Puckett never acquired title to any part of the cotton raised by King, his tenant, for the reason that the land was sold June 1, 1915, at sheriff's sale, before the cotton matured.
A tenant may mortgage an unplanted crop, and the same will be effective as soon as he plants the crop, for the reason that he then becomes the owner thereof. A landlord has a lien on such crop for rents and advances, but until the crop is matured and partitioned he has no ownership therein.
The sale of land carries with it the crops growing thereon, in the absence of an agreement to the contrary. Porter v. Sweeney, 61 Tex. 213; Hearne v. Lewis, 78 Tex. 276, 14 S.W. 572; Shultz v. Spreain, 1 White W. Civ.Cas.Ct.App. § 916. The sale being a forced sale, Puckett had no power to reserve the growing crop, and did not attempt to do so. Appellee cites the cases of Willis v. Moore, 59 Tex. 628, 46 Am.Rep. 284, and Silberberg v. Trilling, 82 Tex. 523, 18 S.W. 591. These cases are not in point, for the reason that in those cases the relation of landlord and tenant did not exist. In Willis v. Moore, 59 Tex. 633, the court said:
"There might be some difficulty in determining the true relation which existed between Lewis Moore and J. A. Gill, under the agreement of date December 24, 1877; but it is treated by appellant's counsel as a partnership, in which, for their mutual benefit, the land was cultivated by the latter, the material for that purpose being in part furnished by each, the net proceeds to be equally divided between them. This is probably the true relationship of the parties, rather than that they were landlord and tenant, and we will so consider them in disposing of the case."
In the case of Silberberg v. Trilling the only question decided was that one could mortgage a crop upon his homestead, and that such mortgage will sever the crop from the realty, and thereby render it subject to *Page 108 mortgage. Here it was the owner of both the crop and the land who executed a mortgage. But a mortgage of a growing crop by one who has no ownership therein will not sever it from the realty.
For the reason stated, the motion for a rehearing is granted, our former judgment herein is set aside, the judgment of the court below is reversed, and judgment is here rendered for appellant.
Reversed and rendered.