company. The plaintiff owned one share, advanced $600 of capital, and procured Yan Middlesworth to go out as his substitute, which he did, and acted as his agent and substitute; and the assets of the company having been divided in California, he received the plaintiff's share, and afterwards died, not having paid it over. By one of the articles of the association all treasures and all the proceeds of the labor of each member, and all profits, were to go into a general fund for the benefit of the association. To the action brought on the policy it was objected that the plaintiff had no insurable interest in the life of the deceased. On this question the court said: In the present case Johnson had a direct interest in the life of his substitute, whose earnings were to constitute a part of the joint funds, of which he was entitled to his share, an interest fully equivalent to the interests of a wife in the life of her husband, of a child in that of a parent, or a sister in that of a brother. And at Van Middlesworth's death, although prior to that time the company had been virtually dissolved, he had an interest in him as his creditor to the extent of his share of the assets in his hands."

In Bevin v. Connecticut Mut. Life Ins. Co., 23 Conn. 244, the plaintiff had obtained a policy of insurance for $1,000 on the life of one Barstow, to whom he had advanced $350, besides articles of personal property, to enable him to go to California and there labor for one year, on an agree ment that he would account to the plaintiff for one-half of his gains. The court said that Barstow was the plaintiff's debtor and partner, giving to the plaintiff an interest in the continuance of his life, as by that means, through his skill and efforts, the plaintiff might expect, not only to get back what he had advanced, but to acquire great gains and profits in the enterprise. "All the books," the court added, "hold this to be a sufficient interest to sustain a policy of insurance. As to the value of this interest, we think it must be held to be what the parties agreed to consider it in the policy. This was the sum asked for by the plaintiff, and which the defendant agreed to pay in case of death, and for which they were paid in the premiums given by the insured. The policy must, we think, be held to be a valued policy." And, after referring to a policy of insurance obtained by a sister on her brother's life, where no question seemed to have been made as to the amount, but only whether it was an interest which the law would recognize, the court said: "so, in every case, where a person on his own account insures the life of a relative, if the sum named in the policy is not to be the rule of damages, we inquire what is? The impossibility of satisfactorily going into the question in most cases, and especially where there is nothing to guide the inquiry, and everything is uncertain, would lead us to hold that a policy like this is a valued policy as most consistent with the understanding of the parties and the principles of the law."

3. The third question presented for determination relates to alleged breaches of the warranty of the policy. It is alleged that the policy was issued upon the faith of certain statements and answers of the plaintiff which were untrue. These statements were-First, that the plaintiff had an interest in the life of Dillenberg to the amount or $10,000, when, in fact, he had no interest in it; and, second, that the cause of the death of one of the brothers of Dillenberg was accident, when, in fact, he had committed suicide.

As to the alleged breach of the warranty of the interest of the plaintiff in the life of Dillenberg there is this answer: The statement of the plaintiff as to the amount of his interest was necessarily conjectural. No one can affirm with absolute certainty that he has an interest to a definite sum in the life of another, where the interest depends upon the result of an existing partnership or other business transactions not yet terminated. The value of his interest in such cases will always be more or less a matter of opinion. The statement in that regard, must, of necessity, be taken as a mere estimate. If, therefore, the plaintiff had an interest in the life of Dillenberg, and his estimate was made in good faith, the declaration can not be deemed untrue so as to constitute a breach of the warranty. The extent of a man's interest in the life of another, depending upon a continuing partnership or the results of business transactions not yet completed, is, in the nature of things, uncertian, and in such cases all that can be required is that he had an actual interest, and that his estimate was made in good faith, without any purpose to deceive. See Bevin v. Connecticut Mut. Life Ins. Co., supra.

Here the plaintiff valued his interest and took out a policy for only half the sum estimated. He did not procure the policy for any purpose of speculating upon the duration of the life of Dillenberg. From the finding of the jury we must take as true that his representation was made in good faith upon an honest opinion as to the value of his interest.

As to the alleged misstatements of the cause of the death of a brother of the deceased, it is sufflcient to observe that there is no allegation on this subject in the answers of the plaintiff, and the point is taken, simply because, in an answer to a previous application, that statement was made. Such previous answer can not be incorporated into the previous policy. The reference to the previous application is made for the answer to a different inquiry.

There may be, as stated by the counsel for the company, some inconsistencies between the charges given at its request, and those given at the request of Luchs. The latter present all the disputed questions of fact to the jury, and if those granted at its request are erroneous, in so far as they differ, it is not for it to complain, as was well observed by counsel, that while the judge held Luchs within proper limits, itself was suffered to go beyond them.

Appeal from Falls County.

Goodrich & Clarkson, for appeilant; Clark & Dyer, for appellee.

STAYTON, J., delivered the opinion of the court: The deed in trust made by Lewis Moore to secure the note executed by him to Reed and Smith having been duly recorded, it must be held that A. J. Gill bought the interest of Lewis Moore in the crop upon the land on the first of August, 1881, with notice of whatever right the appellant by virtue of the transfer of the notes which carried with them as an incident, the security evidenced by the trust deed, had in the crops then standing ungathered upon the land. There might be some difficulty in determining the true relation which existed hetween Lewis Moore and A. J. Gill, under the agreement of date of December 24, 1877, but 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.

It does not appear when the notes to Reed and Smith matured, but it is found that they were due and unpaid on the 8th of September, 1881, at which time the substituted trustee sold the land, and thereby the appellant became the owner thereof. The question for our decision then is: Is the purchase of mortgaged lands as against the mortgagor, or any person claiming under him by a purchase of the crops, entitled to such crops as were standing ungathered upon the land at the time of his purchase?

A. J. Gill does not necessarily stand in the same relation to this question as would Lewis Moore, were he the claimant. That in England, as in many of the States of the Union, the mortgagee is deemed the holder of the legal title, ean not be questioned; and that upon such title he may maintain ejectment against the mortgagor. And where such is the rule, many decisions are to be

found, in which it is held that neither the mortgagor nor the tenant under him,claiming through a lease made after the execution of the mortgage, is entitled to carry away the crops growing upon the mortgaged land at the time of the foreclosure, or actual entry by the mortgagee: and this, upon the theory that from the date of the mortgage the mortgagor is but a tenant at sufferance: and that a lease made by him, being unauthorized, makes a disseizin.

In the case of Lane v. King, 8 Wend. 585, which is a leading case in America, the rule and reasons therefor are thus illustrated: "In Keech v. Hall, Doug. 21, already referred to, the mortgagee brought an action of ejectment against a tenant, who claimed under a lease from the mortgagor, given after the mortgage, without the privity of the mortgagee." Lord Mansfield, in delivering the opinion of the court, said: "On full consideration we are all clearly of opinion that there is no inference of fraud or concert against the mortgagee, to prevent him from considering the lessee of the mortgagor, as a wrong-doer. The question turns upon the agreement between the mortgagor and mortgagee; when the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises, at will, in the strictest sense, and, therefore, no notice is ever given to quit, and he is not even entitled to reap the crop as other tenants at will are, because all are liable to the debt, on payment of which the mortgagee's title ceases. The mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgage; the tenant stands exactly in the the situation of the mortgagor. This court, in McKercher v. Hanley, 16 Johns, R. 292, also held that the relation subsisting between the mortgagor and mortgagee did not imply a right on the part of the mortgagor to lease. The mortgagor, therefore, in giving a lease, becomes as to the mortgagee a disseizor. The mortgagee, undoubtedly, as against the mortgagor and his grantees, has the paramount right. Mr. Powell considers the rights of mortgagee to emblements as against the lessee of the mortgagor, as necessarily resulting from the doctrine established by Lord Mansfield in Keech v. Hall, Doug. 21, and that a mortgagor has no right to lease. He observes that he can see no ground on which the case of such lessee, as to emblements, can be distinguished from any other tenant under a tortious title; for if he be considered a wrongdoer as to his occupation of the premises, he can not be considered in a different character as to emblements, nor can there be any ground to imply a consent to cultivate the property, when no implication is admitted to a consent to occupy it." In the case of Keech v. Hall, 1 Doug. 23, in reply to a suggestion that the tenant of a mortgagor was entitled to emblements, Lord Mansfield said: "I give no opinion upon that point; but there may be a distinction, for the mortgagor may be considered as receiving the

rents in order to pay the interest by an implied authority from the mortgagee, till he determine his will, as to the lessee's right to reap the crop which he may have sown previous to the determination of the will of the mortgagee; that point does not arise in this case, the ejectment being for a warehouse, but, however, that may be, it would be no bar to the mortgagee recovering in ejectment it would only give the lessee a right of ingress and egress to take the crop; as to which, with regard to tenants at will, the text of Littleton is clear." In this State it has been held, from an early day, that a mortgage is but a security for a debt; that the title to property mortgaged remains in the mortgagor, and with it the right of possession, which is one of the ordinary incidents of title. Duty v. Graham, 12 Tex. 427; Wright v. Henderfon, 12 Tex. 44; Wooten v. Wheeler, 22 Tex. 338. Such being the legal effect of a mortgage in this State, it will be readily seen that the foundation upon which the rights of mortgagees is based in England and in some of the States, wholly fails. 1st, there the paramount title is held to be in the mortgagee, here the paramount title remains in the mortgagor, and no estate passes to the mortgagee unless through foreclosure; 2d, there the right to the immediate possession of the mortgaged property vests in the mortgagee, with the consequent right to appropriate the fruits and revenues without liability to account, unless called upon to do so in a proceeding to enforce the equity of redemption; here, no right to the possession, nor to the fruits and revenues so long as the mortgage stands unforeclosed, unless under some proceeding peculiarly equitable. 3d. There, the mortgagor, under the conflict of authority, is held to be either a tenant at sufferance or a tenant at will, with no power to do aught else than under the strict rules of the common law, a tenant with the feeblest tenure may do; a lease by him operating as a disseizin of the mortgagee, and making himself and his lessee tort feasors; here he is the owner of the fee, if such be his estate in the land which he mortgages; recognizing no landlord; neither a tenant at will, nor a tenant at sufferance, in any sense in which these terms can be legitimately applied; for the owner can not be, in the nature of things, the tenant of any one; he has power to lease without disloyalty to any one, his lease, if made after mortgage, subject, however, to be determined in case of foreclosure before its expiration.

The reason sometimes given, why a mortgagor should not be permitted to have the crops still standing upon the land at time of the foreclosure is: That he may obtain their value in account upon bill to redeem; with us this reason can have no effect, for there is no such thing in our practice as the right to redeem after foreclosure, which is made by sale. The crops were planted, cultivated, and in fact must have been almost, if not quite matured, before the sale in September; and while the paramount title to the land upon which they grew was still in Moore, the vendor of Gill,

Moore sold them. The element of uncertainty, in so far as Gill was concerned, as to the continuance of title in his vendor, was very nearly as great as though he had held as tenant at will. The direction of the creditor to sell under the deed of trust, and thereby place in himself or some other person the title to the land, was an act of will, without the exercise of which the paramount title to the land would continue in Moore; and even such exercise of the will would not necessarily effect that result; for Moore might be able to pay the indebtedness and thereby effectually prevent the divestiture of his title. Where the mortgage is held to vest the title in the mortgagee, no such elements of uncertainty exist; he may enter whenever he pleases. The right of a person purchasing under a foreclosure of a mortgage, where it is held that the mortgage passes no estate, but is a mere security, to have the crops on the land at time of foreclosure, is questioned by Mr. Washburn. 1 Washburn on Real Property, 124. The reasons for the rule in question not existing here, it seems to us the rule must be held not to exist. The deed of trust seems to evidence the fact that the parties contemplated, even if sale was made under it, that Moore and those claiming under him should not at once surrender the land to the purchaser, but from the time of the sale should attorn to the purchaser; which carries with it by implication at least, an agreement that from such time Moore or his assigns should, as tenants, recognize the purchaser as the landlord, and pay rent for the land from the time of foreclosure. By attornment is meant "the act of recognition of a new landlord, implying an engagement to pay rent and perform covenants to him The word is taken from the feudal law, where it signifies the transfer by act of the lord and consent of the tenant of the homage, service, fealty, etc., of the tenant to a new lord who had acquired the estate." Abbott's Law Dictionary. It is true that the trust deed provides that the holding shall be as tenant at sufferance; but there can be no such thing as tenant by sufferance when the tenancy is the result of agreement, such as is found in the trust deed, with reference to which the purchaser must be presumed to have bought, and by which he is as much bound as though he had been a party to that instrument; and in the absence of something in the agreement, evidencing that it was the intention of the parties after the foreclosure, to have their rights to stand strictly upon the relation of landlord and tenant at sufferance, the parties should be held to have intended that such a tenancy should exist as is created by agreement, at least a tenancy at will, which would carry with it the right to the crops then nearly or quite matured, lest wrong attend at time of foreclosure.

A tenancy by sufferance "is of such a nature as necessarily implies an absence of any agreement between the owner and the tenant; and if express assent is given by the owner to such possession

the tenancy is thereby instanter converted into a tenancy at will, or from year to year, according to the circumstances." Woods' Landlord and Tenant, 15. It matters not what parties may designate such a tenancy. This view of the case would be conclusive of the question, but there is another view of the case which is equally so. A mortgage being simply a lien to secure the payment of a debt, it can not be held to give to a mortgagee or person purchasing under it any greater right to ungathered crops standing upon the mortgaged land, than would a person have who purchased under a lien acquired in any other manner, prior to the time the crop is planted, or the right to plant it accrued. Hogsett v. Ellis, 17 Mich. 363.

"Crops, whether growing or standing in the field, ready to be harvested, are, when produced by annual cultivation, no part of the realty. They are, therefore, liable to voluntary transfer as chattels. It is equally well settled that they may be seized and sold under execution." Freeman on Execution, 113, and citations; Benjamin on Sales, 120. Such being the case, if there be nothing in the contract of the parties by which land is conveyed, nor in the circumstances attending the sale, evidencing the intention of the parties, that crops nearly or quite matured should pass with land sold, it is difficult to see upon what principle it can be held, that property strictly personal in its character should pass by an instrument which upon its face purports only to convey land. The weight of authority, however, is to the effect that such crops will pass by the sale of the land if they belong to the owner of the land at the time of sale. The application of this rule to sales made under mortgages, having only such effects as mortgages here are held to have upon crops produced many years after the mortgage was given, need not further be considered. As, however, the crops are separate and distinct in their nature, from the land upon which they grew, the ownership of the one, even on mortgaged property, may be in one person and the title to the other in another; and whenever crops growing or standing upon land covered by a lien given by the owner of the land, or acquired by law, have in law or in fact been severed in ownership, or actually severed from the land prior to sale of the land under the lien, title thereto will not pass by the foreclosure of the llen. A mortgagor is entitled to sever in law or fact the crops which stand upon his land 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 his land, and the mortgage is taken with knowledge of that fact.

In the case of of Meyers' assignees v. White, 1 Rawle 355, it appeared that Meyer had executed a mortgage upon a tract of land, subsequent to which he had a crop upon the land which with the land he assigned for the benefit of his creditors. There was subsequently a sale under fore

closure of the mortgage, and the purchaser at that sale of the land, claimed the crop, and it was held that the crop passed to the assignees, and not to the purchaser under the foreclosure of the mortgage, and this upon the ground that the crops by conveyance to the assignees had been severed. The court said: "As there is no difference in this respect between a judgment and a mortgage creditor, this case has been virtually decided in Hambuch v. Yeates, not yet reported, in which it was held, that grain growing in the ground is personal property, and might be levied upon and sold as such, and that it did not pass by a sale to the sheriff's vendee, Peter Meyer, before judgment on the scire facias, had parted with his interest in the crop at the time of the sale, all his right was vested in his assignees for the benefit of his creditors."

In the case of Stambaugh v. Yeates, 2 Rawle 161, Yeates had recovered a judgment against Kyrne and caused a fieri facias to be levied upon his land and returned, after which the land was sown in grain and another creditor caused a levy to be made upon the grain under a judgment which he had obtained, and the grain was sold, afterwards the land was sold under a venditioni exponas, and it was held that the creditor who levied on the grain was entitled to the proceeds.

These cases are approved and applied in Bear v. Bitzer, 16 Penn. St. 178, and in Groff v. Levan, Ib. 177. All of these cases, as well as the case of Bettinger v. Baker, 29 Penn. St. 70, were considered in the case of Hershey v. Metzgar, 90 Penn. St. 218, and were received and approved, and referring to the case of Bear v. Bitzer, the court says: "The latter case rules that a purchaser of land at sheriff's sale is entitled to the growing grain thereon, which had not been severed before the sale. There the owner of the land which was sold owned the crop, and there had been no act of separation. 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." All these cases recognize a sale by the owner or by judicial process if made before the sale of the land as a severance.

*

The court of appeals of Maryland, in Purner v. Piercy, 40 Maryland 223, in speaking of what constitutes severance, say: "There is nothing in the vegetable or fruit which is an interest in, or concerning land, when severed from the soil, whether grain, vegetables or any kind of crop (fructus industriales) the product of periodical planting and culture; they are alike mere chattels, and the severance may be in fact, as when they are cut and removed from the ground, or in law, as when they are growing, the owner in fee of the land, by a valid conveyance sells them to another person, or when he sells the land, reserving them by an express provision."

To the same effect is the case of Titus v. Whitney, 1 Harrison 85. In Buckout v. Swift, 27 Cal. 443, it was held that a house which stood on

mortgaged land, but which was severed from the land subsequently by a storm, did not pass by the sale under foreclosure.

There is no error in the judgment and it is affirmed.

EQUITY-CONVEYANCE-NOTICE.

JOHNSON v. WILSON.

Supreme Court of Missouri, May 28, 1883.

He who takes with notice of an equity takes subject thereto.

Appeal from the Andrew Circuit Court.

PORTER, J., delivered the opinion of the court: This is a proceeding in equity. The petition in effect was, that in February, 1871, one Joseph Helper made a deed of trust conveying certain lands to defendant Wilson, trustee, to secure the payment of a note to one Adams, made by said Helper. In June, 1872, said Helper made another deed of trust conveying to said Wilson, the same lands, to secure the payment of a note made by said Helper to one Dillard. In October, 1873, said Helper, by general warranty deed, conveyed sixteen acres of said lands for the sum of $200 to plaintiff Johnson, who went into possession and made valuable improvements. The deed to plaintiff was filed for record June, 1874, and was made after the deeds of trust to defendant Wilson. On the 28th of February, 1874, said Helper and defendant Barns made their joint deed of trust to one James H. Tureman, to secure the payment of two promissory notes made by Helper and Barnes to one B. K. Tureman, conveying to said James H. Tureman certain of the lands of said Helper, including the said sixteen acres, and certain lands of Barnes. When this trust deed was made, said Tureman and Barns had full knowledge that Helper had conveyed the sixteen acres to plaintiff.

In January, 1876. Wilson, as trustee, sold under the first named deeds of trust, all the lands therein described, including the sixteen acres, and realized thereby $476 in excess of the debts of Adams and Dillard, and all expenses. Prior to said sale by Wilson, B. B. Tureman had transferred his notes to R. W. Tureman, who is now the legal holder thereof. The 270 acres belonging to Barns and included in the deed of trust to James H. Tureman, is amply sufficient to pay off the said notes now held by R. W. Tureman. Helper is insolvent and a non-resident, and plaintiff is without any other remedy. The $176 has been deposited with defendant Tureman for safe keeping. The prayer is, that said trustee, James H. Tureman, proceed to sell the land of defendant Barnes, and that R. W. Barnes exhaust his remedy therein before applying any part of the said $476 in payment of his said debt; and that the said $200 purchase-price of said sixteen

acres, with 6 per cent. interest thereon, be paid to plaintiff out of the $476; and that the further sum of $100 pe paid to plaintiff out of said sum to compensate him for his improvements. Defendant Barns filed his demurrer to the petition on the grounds that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and final judgment rendered against plaintiff, who has appealed.

Sherwood J., delivered the opinion of the court. The 16 acres of land conveyed by Helper, subject to the former deed of trust, under which the sale took place, was not in equity, subject to the last deed of trust, because the parties in interest had notice of the conveyance to plaintiff. He who takes with notice of an equity, takes subject there to.

The case stands before us then precisely as if the 16 acres had not been sold under the prior deed of trust, and the defendants were attempting to enforce their subordinate, equitable and legal rights against the prior and well known equities of the plaintiff. True the 16 acres of land has been converted into money, but this does not affect the question, since equity will on proper occasions treat money as land, and vice versa. The petition concludes with a prayer for general relief consistent with the facts alleged. If the 16 acres of land had not been sold under the prior deed of trust, it is quite clear that equity would not permit parties who took the third deed of trust with notice of plaintiff's right to sell her land under such third incumbrance. No more will equity in the circumstances of this case, permit such parties with notice to lay their hands on the proceeds of the 16 acres. Helper being both non-resident and insolvent, if plaintiff could not obtain reimbursement out of the overplus of the $476 he would be remediless, and we think his priority to claim reimbursement out of that sum as clear as his priority to the 16 acres. Therefore judgment reversed and cause remanded. All

1. ADMIRALTY-APPEAL-JURISDICTIONAL AMOUNT. The libellant in a suit in rem, in admiralty, against a vessel, for damages growing out of a collision, claimed in his libel, to recover $27,000 damages. After the attachment of the vessel in the district court, a stipulation in the sum of $2,100, as her appraised value, was given. The libel having been dismissed by the circuit court, on appeal, the libelant appealed to this court. Held, that the matter in dispute did not exceed the sum or value of $5,000, exclusive of costs, as required by se c