This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
32. Sexton v. Breese, 135 N. Y 387, 32 N. E. 133; Killebrew v. Hines, 104 N. C. 182, 17 Am. St. Rep. 672, 10 S. E. 159, 251; Hina mortgage or sale of the crop, although not followed by an actual severance thereof, is regarded as effective as against a prior mortgage of the land.33
In case there is neither an actual or constructive severance of the crop from the land, sufficient to exclude the crop from the operation of the mortgage on the land, the crop will, in most jurisdictions, pass with the land upon the sale thereof under foreclosure,34 unless it is expressly excepted35 or, in two or three jurisdictions, unless it is matured at the time of the sale.36 The right of the mortgagor to sever the crop has however been regarded as continuing until the confirmation of the sale37 and even until he has relinquished possession to the purchaser.38
There are, in two jurisdiction, decisions to the effect that the purchaser at foreclosure sale does not acquire a right to the crops on the land. These deton v. Walston, 115 N. C. 7, 20 S. E. 164.
33. Dail v. Freeman, 92 N. C. 351; Myers v. White, 1 Rawle, (Pa.) 353; (See Hershey v. Metz-gar, 90 Pa. St. 217); Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284; White v. Pulley, 27 Fed. 436. So as regards an execution sale of the crop. Cooper v. Cole, 38 Vt. 185; Favorite v. Deardoff, 84 Ind. 555; Hershey v. Metzger, 90 Pa. St. 217 (dictum).
34. Wheeler v. Kirkendall, 67 Iowa, 112, 25 N. W. 829; Stan-brough v. Cook, 83 Iowa, 705, 49 N. W. 1010; Goodwin v. Smith, 49 Kan. 351, 17 L. R. A. 284, 33 Am. St. Rep. 373, 31 Pac. 153; Wootton v. White, 90 Md. 64, 78 Am. St. Rep. 425, 44 Atl. 1026; Dayton v. Dakin's Estate, 103 Mich. 65, 61 N. W. 349; Reed v. Swan, 133 Mo. 100, 34 S. W. 483; Reily v. Carter, 75 Miss. 798, 65 Am. St. Rep. 621, gage, would seem to be invalid as against one claiming under foreclosure of the mortgage on the land, such a constructive severance not being an ordinary mode of utilizing the land, except perhaps when it takes place after the maturity of the crop, or when, though it takes place before the maturity of the crop, it can be regarded as validated by the subsequent maturity of the crop while the mortgagor is still in possession. The cases recognizing the effectiveness of a sale or mortgage of the crop as against one claiming under a mortgage of the land,42 ordinarily base this view upon the fact that, in that jurisdiction, the mortgage is merely a lien. As has been judicially remarked,43 however, this does not seem to have any essential bearing on the question, inasmuch as the perfecting of the title under a foreclosure of the mortgage has reference to the time at which it became a lien, and this being so, the foreclosure should take priority over the intervening sale or mortgage of the crop. Moreover conceding that the person claiming under foreclosure acquires the crops because it was intended that the crops should be included in the security, this intention cannot be affected by the fact that the mortgagee does not acquire the legal title to the land.
23 So. 435; Lane v. King, 8 Wend. (N. Y.) 584, 24 Am. Dec. 105; Batterman v. Albright, 122 N. Y. 484, 11 L. R. A. 800, 19 Am. St. Rep. 510, 25 N. E. 856; Jones v. Adams, 37 Ore. 473, 50 L. R. A. 388, 82 Am. St. Rep. 766, 59 Pac. 811, 62 Pac. 16; White v. Pulley, 27 Fed. 436.
35. Sherman v. Willett, 42 N. Y. 150.
36. Hecht v. Dettman, 56 Iowa, 679, 41 Am. Rep. 131, 7 N. W. 495, 10 N. W. 241; Richards v. Knight, 78 Iowa, 69, 4 L. R. A. 453, 42 N. W. 584; First Nat. Bank v. Beegle, 52 Kan. 709, 39 Am. St. Rep. 365, 35 Pac. 814; Porche v. Bodin, 28 La. Ann. 761.
37. Allen v. Elderkin, 62 Wis. 627, 22 N. W. 842; Walker v. Hall. 15 Ohio St. 351 (crop sowed after sale.)
38. Monday v. O'Neil, 44 Neb. 724, 48 Am. St. Rep. 760, 63 N. W.
Conceding that, as are the cases generally, the person who acquires the land upon foreclosure also acquires the crops which have not been severed, this must be so because such was the intention of the parties to the mortgage. The crops, present or future, could be expressly excepted in the mortgage instrument, but, in the absence of such exception, they are included in the description of the land as being a part thereof, and are consequently subject to the mortgage. Language describing land presumptively includes the crops thereon, whether it occurs in a conveyance, in a contract to convey, in a mortgage, or in any other instrument. There is nothing inconsistent with this conclusion in the fact that the mortgagor, while in possession, has the right to gather the crops. This right, like his right to take other profits of the land, is an incident of his possession, and is merely a right to utilize the land in the ordinary manner.40 He has, presumably, no right to sever the crops except as this accords with the ordinary mode of utilizing the land, and for this reason, it is submitted, he would have no right to sever them before maturity.41 For the same reason a constructive severance of the crops, by sale or mort32; Aultman & Taylor Co. v. O'Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756.
39. Cassilly v. Rhodes, 12 Ohio, 88, 44 Am. Dec. 461; Houts v. Showalter, 10 Ohio St. 125; Foss v. Marr, 40 Neb. 559, 59 N. W. 122; Monday v. O'Neil, 44 Neb. 724, 48 Am. St. Rep. 760, 63 N. W. 32.
40. Sexton v. Breese, 135 N. Y. 387, 32 N. E. 133, in so far as it decides that one to whom the mortgagor sells the crop may sever it after the mortgagee has acquired possession of the land from the mortgagor, appears open to question.
41. See Adams v. Beadle, 47 Iowa, 439.
(c) Mortgagee in possession. The mortgagee, if in possession, is entitled to the rents and profits, but he is bound to account therefor on redemption by the mortgagor, or on foreclosure, that they may be set off against the mortgage debt.44 And the mortgagee in possession is bound to account not only for rents and profits actually received by him, but also for what he might have received by the exercise of reasonable diligence in leasing or otherwise utilizing the mortgaged premises.45 If he does exercise such diligence, he is liable only for what he has received.46