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 Second National Bank, of Grand Forks, Plaintiff and Respondent, v. James K. Swan, Defendant and Appellant.

Mortgage—Foreclosure—Right to Crops—Priorities.

1. The holder of a certificate of sale of land upon foreclosure has no interest by virtue of such certificate in the crop raised and harvested on the land during the year of redemption.

2. A contract by the fee-owner, vurnorting to convey such crop to the certificate holder, either as security or absolutely, cannot prevail against a prior mortgage by the fee-owner of such crop, or against a subsequent mortgage, taken without notice or such contract, and given while the fee-owner was in possession.

(Opinion Filed Nov. 7, 1891.)

APPEAL from district court, Grand Forks county; Hon. Charles F. Templeton, Judge.

Bosard & Van Wormer, for appellant. Burke Corbet, for respondent.

Action by the Second National Bank against James K. Swan for the value of certain wheat. Judgment for plaintiff. Defendant appeals. Affirmed.

Bosard & Van Wormer, for appellant:

An owner of an equity of redemption has the right to assign, sell or transfer the same. Jones on Mortgages, § 6; Freeman on Executions, § 190; Yovle v. Richardson, 23 Am. Dec. 722; Batty v. Snook, 5 Mich. 231; Armstrong v. Sanford, 7 Minn. 34; Goodenow v. Ewer, 16 Cal. 461; McMillan v. Richards, 99 Am. Dec. 655. The contract between Barnes and Brennan is one of sale and purchase of land, and Brennan would not be allowed to deny the right of Barnes to the possession of the land. Jackson v. Miller, 21 Am. Dec.316; Lacy v. Johnson, 17 N. W. Rep. 246; Wellington v. Gale, 7 Mass. 138; Portu v. Millett, 9 Mass. 101; Seabury v. Stewart, 58 Am. Dec. 254; Holmes v. Schofield, 29 Am. Dec. 346. Brennan having failed to make the payment he agreed to make, the title to the crop never passed. Dunlap v. Gleason, 16 Mich. 158; Marquette Co. v. Jeffery, 49 Mich. 283; Budlong v. Cottrel, 20 N. W. Rep. 166. The same principle is