Opinion
Rehearing Granted July 19, 1929
Appeal from Superior Court, Fresno County; Charles R. Barnard, Judge.
Action by Serop Yakoobian against H.G. Johnson and others. From the judgment, named defendant appeals. Affirmed.
COUNSEL
Sherwood Green, of Berkeley, and W.E. Simpson, of Fresno, for appellant.
Gallaher & Jertberg and K. Kuyumjian, all of Fresno, for respondent.
OPINION
PER CURIAM.
An appeal by defendant H.G. Johnson from a judgment in the sum of $2,616.16 recovered against him by plaintiff, Serop Yakoobian.
Plaintiff’s complaint stated two causes of action. In the first count it was alleged that the defendant converted to his own use certain crops of grapes on which the plaintiff held a crop mortgage securing the payment of a note in the sum of $2,500. The second count was for money had and received for the use and benefit of the plaintiff.
The facts were as follows: Some time previous to the year 1924, defendant agreed in writing to sell the land on which the crops were grown to one Papazian, reserving one-half of the crops to be produced thereon as security for the payment of installments of the balance of the purchase price. Subsequently, on January 4, 1924, Papazian mortgaged to the plaintiff one-half of the crops to be produced during the years 1924 and 1925 to secure payment of the note mentioned which by its terms was payable with interest on or before October 1, 1924. During the crop season of 1924 Papazian sold a portion of the crops and received therefor amounts aggregating the sum of $1,713.67. Thereafter he defaulted in the performance of his contract with the defendant. On September 4, 1924, the latter instituted an action to terminate the vendee’s rights thereunder and for the possession of the land. Judgment in the action was entered on March 7, 1925, following which defendant went into possession. Upon the filing of that action the court on the application of defendant Johnson appointed a receiver, who took possession of the crops growing on the property. He proceeded to market the same, and received therefor a total of $4,411.64. After deducting the expenses incurred in marketing the crops and his own fees, he paid the sum of $600.85 to defendant Johnson, and expended for the latter’s benefit the following: $81.65 for insurance on the buildings on the property; $368.21 for taxes; and $2,280 in payment of the principal and interest of a mortgage executed upon the land by the defendant— the total amount received by the latter directly or indirectly being $3,330.71.
The court entered judgment in favor of the plaintiff for $2,616.66, the amount of the chattel mortgage and accrued interest, from which the appeal was taken.
Following the execution of his contract with the defendant, the vendee went into possession and, so far as appears from the record, so remained until the entry in 1925 of the judgment terminating his rights. The crops in controversy, which were fructus industriales (Vulicevich v. Skinner, 77 Cal. 239, 19 P. 424; Hovsepian v. Eskender, 69 Cal.App. 379, 231 P. 364), were not in existence when the contract was executed, and the interest of the vendor therein, who was not in possession until after the same were marketed, arose from and depended upon the provisions of the contract. Upon his election to terminate and declare forfeited the rights of the vendee thereunder the latter, notwithstanding, remained in possession, and thereupon became an adverse claimant, and all privity between him and the vendor ceased. Cal. Delta Farms, Inc., v. Chinese, etc., Farms, Inc. (Cal.Sup.) 269 P. 443; Hovsepian v. Eskender, supra. Thereafter the vendor could assert no right to the crop, which rested upon the provisions of the contract (Glassell v. Coleman, 94 Cal. 260, 29 P. 508; Dishian v. Kishishian, 64 Cal.App. 440, 221 P. 669; Hovsepian v. Eskender, supra); and in his action to foreclose the vendee’s rights no receiver could legally be appointed (Cal. Delta Farms, Inc., v. Chinese, etc., Farms, Inc., supra), his remedy consisting in the recovery of the mesne profits (Johnston v. Fish, 105 Cal. 420, 38 P. 979, 45 Am.St.Rep. 53; Rector v. Lewis, 46 Cal.App. 168, 188 P. 1018; note 39, A.L.R. 971).
Appellant contends that the receiver was not his agent, but an officer of the court for whose acts he was not responsible. However this may be, appellant received the proceeds from crops subject to the lien of plaintiff’s mortgage, to which the latter in equity and good conscience was entitled. Under such circumstances the money may be recovered. Gray v. Huffaker, 176 Cal. 516, 169 P. 1038; Fontaine v. Lacassie, 36 Cal.App. 175, 171 P. 812. Moreover, the receiver held the property subject to the lien of the mortgage (Von Roun v. Superior Court of San Francisco, 58 Cal. 358; Bories v. Union Building & Loan Assn., 141 Cal. 74, 74 P. 552), and the proceeds having been applied to the benefit of the defendant he was to the amount of the mortgage obligated to repay the same to the plaintiff (Crosby v. Fresno Fruit Growers’ Co., 30 Cal.App. 308, 158 P. 1070).
Appellant further contends that the lien of the mortgage was prima facie extinguished by the removal of the crop, and that in order to recover it was incumbent upon the plaintiff to show that the removal was tortious, citing Ramsey v. Cal. Packing Corporation, 51 Cal.App. 517, 201 P. 481, and Valley Bank v. Hillside Packing Co. (Cal.App.) 267 P. 746. In each of the cases cited a mortgaged crop was purchased by the defendant after the lien of the mortgage had prima facie been extinguished by the removal of the crop from the land by the mortgagor. It was held to be incumbent upon the mortgagee, if he would still enjoy the benefit of his mortgage security, to meet such prima facie case by showing that the removal was without his consent. In view of the facts shown in the present case, no reasonable ground could exist for a claim that the plaintiff consented to the acts of the receiver, and that portion of the crop removed by the vendee is not involved in the action. Moreover, unlike the facts in the above cases, the defendant was not a purchaser for value or otherwise, and stood in no better position than the receiver.
We find no merit in the appeal, and the judgment is accordingly affirmed.