Godfrey v. Johnson

Bond, C. J., delivered the opinion of the Court. The question in this case is one of the right, to growing crops between judgment creditors of the landowner, who bought them in at a sheriff’s sale in execution upon their judgment, and a mortgagee of the land who bought it in at a sale upon foreclosure of his mortgage, also while the crops were still growing. The court below held that the crops passed under the foreclosure sale as part of the security of the mortgage, and could not bo seized and sold in execution upon the judgment; and this court, on appeal, has. eofiie to the same conclusion. On September 26th, 1922, Andrew C. Henman, the owner of a farm in Worcester County, with his wife, executed a mortgage on the farm to the appellee, Johnson; and there ⁵⁸⁴ was inserted in the mortgage a provision that “in the event that said property shall be sold under the powers hereby granted or under a decree or order of any court having jurisdiction to decree or order a sale thereof, all the interest of the mortgagors in and to all the annual crops pitched or cultivated thereon shall pass with the said mortgaged property to the purchaser at any such sale.” The mortgage was duly recorded.

About a year after the execution of that mortgage, on September 3rd, 1923, Godfrey and Warren recovered a judgment against Herman and wife in the Circuit Court for Worcester County and at once issued execution o!n it; and the sheriff on the next day, September 4th, 1923, levied upon and took in execution certain crops growing on the farm at that time. The crops were advertised for sale by the sheriff, and were sold, still growing, on October 20th, 1923, the judgment creditors buying them in at the sale. Meanwhile, on September 20th, 1923, the mortgagee, Johnson, had filed suit for foreclosure of his mortgage and, at a foreclosure sale on October 13th, 1923, had bought the property in. After both sales, on November 5th to 9th, 1923, the crops were severed by Godfrey and Warren under the authority of the sheriff, and sold; and Godfrey and Warren took possession of the proceeds of sale.

A few days later the mortgage foreclosure sale to1 Johnson was ratified and confirmed, and he has brought suit in trover -and recovered judgment against Godfrey and Warren for converting to their own use the crops which he claims as having passed to him by his purchase at the mortgage foreclosure sale. The exception oin which the question is presented is one to the trial court’s refusal of an instruction that the verdict should be for Godfrey and Warren. The parties agree that, prior to the passage of Acts 1900, ch. 457, sec. 26, now article 66, section 26, of the Maryland Code, growing crops regularly passed to the purchaser upon a mortgage foreclosure sale, as part of the security. Wootton v. White, 90 Md. 64 .

The statute altered that general rule by providing that, except when it is otherwise agreed by the terms of a mortgage, no annual crops pitched or cultivated ⁵⁸⁵ by the debtor or those claiming under him shall pass at a sale under the mortgage, but shall remain the property of the debtor or those claiming under him. And the controversy is on the question whether the