A farm lease declared that the land was being offered for sale, and that, if the purchaser demanded immediate possession, the lease might be declared void by the lessor upon giving notice of sale and paying the lessee a reasonable price for all labor expended and the value of any growing crops. The lessee, having planted wheat, mortgaged the growing crop with other personalty. Thereafter the lessor sold the land, and the purchaser recovered possession; the lessee receiving payment for his work and for the value of the growing wheat. Held, that the title to the growing wheat passed, under the terms of the lease, which was superior to the mortgage, to the purchaser, who harvested it, so that neither the purchaser nor the lessor were liable for a deficiency judgment; the other personalty mortgaged not being sufficient to satisfy the mortgage. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 228-236; Dec. Dig. 138.] Department 2. Appeal from Superior Court, Adams County; Edward C. Mills, Judge. Action by W. S. Woody against Julius Conner and others. From the judgment, defendants Wagner and Neufelt appeal. versed. Re Geo. E. Lovell, of Ritzville, for appellants. Adams & Naef, of Ritzville, for respondent. PARKER, J. The plaintiff, W. S. Woody, commenced this action in the superior court for Adams county seeking foreclosure of a chattel mortgage given to him by Julius Conner upon certain live stock, farming implements, and two-thirds of a crop of wheat seeded in the fall of 1913 upon land occupied by him under a lease from the defendant E. E. Wagner, the owner thereof, which land was thereafter conveyed to the defendant A. A. Neufelt. The case being tried and submitted upon the merits, on November 24, 1914, the superior court rendered a personal judgment against the defendant Conner for the full amount of the debt secured by the mortgage, decreed foreclosure and sale of all the mortgaged property, excepting the crop of wheat, and rendered a personal deficiency judgment against the defendant Wagner, evidently because of the appropriation of the crop upon its maturity by him and Neufelt, his grantee. From this disposition of the cause the defendants Wagner and Neufelt have appealed to this court, claiming that the wheat was lawfully appropriated by them without any obligation to account therefor to any one. The cause comes to us upon conceded facts which may be summarized as follows: Appellant Wagner, being the owner of the land upon which the wheat was seeded and grown, leased the same to Conner for the term of six years commencing January 1, 1913. By the terms of the lease Conner was to pay Wagner as rent for the land one-third of the crops to be grown thereon. The lease contained, among other provisions, the following: "It being understood that this land is being offered for sale, it is agreed that, if the sale of the land is made, and the purchaser demanding immediate possession. this lease may be declared void and of no effect by said lessor giving notice of such sale, and paying said lessee a reasonable price (not exceeding $2.00 per acre) for all labor expended in preparing any ground not in crops, and on further payment of the value of any crops which may be growing or immatured." Conner went into possession of the land. He seeded it to wheat in the fall of 1913 for the crop of 1914. On October 14, 1913, Wagner, having sold and conveyed the land to Neufelt, caused to be served upon Conner two notices as follows: "You are hereby notified that I have sold all of [describing the land] to A. A. Neufelt, and under the terms of the lease you will be required to give possession of the said premises to the said A. A. Neufelt within ten days from the receipt of this notice. All sums due you will be indorsed on the notes which you gave me and which I now hold. "Dated this 14th day of October, 1913. "E. E. Wagner." "You are hereby notified, that I have purchased the [describing the land], and under the terms of purchase I hereby demand immediate possession of the above-described lands. "Dated this 14th day of October, 1913. "A. A. Neufelt." On October 24, 1913, Conner, being indebted to Woody in the sum of $1,629, executed and delivered to Woody a chattel mortgage upon certain live stock, farming implements, and two-thirds of the crop of wheat which he had seeded upon the land shortly prior thereto. This chattel mortgage was duly filed for record, and Wagner had actual knowledge thereof prior to November 1, 1913. On October 25, 1913, Wagner and Conner being unable to agree upon the amount due Conner under the terms of the lease above quoted, because of the sale of the land to Neufelt and the termination of the lease, Wagner and Neufelt commenced an action in the superior court for Adams county for possession of the land and to have determined the amount due to Conner for which he should be credited upon the indebtedness due from him to Wagner because of the termination of the lease. was tried, and in April, 1914, judgment rendered therein by the superior court determining the amount Conner was entitled to because of the sale of the land to Neufelt That case and the termination of the lease. Thereupon, [ title to unsevered crops even as against a in compliance with the judgment so rendered, mortgagee of such crop. This latter holding, Wagner delivered to Conner certain notes however, has no application here, since Conevidencing indebtedness due from Conner, ner's leasehold interest in the land and the and also paid Conner the additional sum of unsevered crop passed back to Wagner, the $65.75, thereby fully complying with the lessor and owner of the land, by termination terms of the judgment and fully paying all of the lease in pursuance of its express terms. sums due Conner because of the sale of the 24 Cyc. 1071; Gregg v. Boyd, 69 Hun, 588, land and the termination of the lease. Neu- 23 N. Y. Supp. 918; Gammon v. Bull, 86 felt has been in possession of the land at all Iowa, 754, 53 N. W. 340. times since the rendering and satisfaction of that judgment. In the summer and fall of 1914, Neufelt harvested, hauled to market, and sold the whole of the crop of wheat which had been seeded by Conner in the fall of 1913 while in possession of the land under the lease. [1, 2] We are unable to see any sound legal grounds upon which the personal judgment rendered by the court against Wagner can be rested. When he sold and conveyed the land to Neufelt, gave Conner notice thereof, demanded possession of the land, and paid to Conner all sums due to Conner because of the cancellation of the lease, he became entitled to the land and all growing unsevered crops thereon. All of this occurred long before the maturity and harvesting of the crop. That it occurred after the giving of the chattel mortgage upon the crop by Conner does not militate against the title to the crop acquired by Wagner and Neufelt upon the sale of the land to Neufelt and the termination of the lease. Manifestly the mortgage rights of Woody were subject to the terms of the lease, and were liable to be defeated by its termination under the provisions thereof above quoted. The passing of unsevered crops with the title to land upon transfer of title thereof is elementary law. It is so when the transfer is by an ordinary deed of conveyance executed by one having perfect title to the land. The rule is stated in the text of 12 Cyc. 977, as follows: "According to the great weight of authority, crops so far partake of the nature of realty that in the absence of reservation or exception they pass by a sale or conveyance of the land as appurtenant thereto, whether unripe or matured, so long as there has not been a severance, actual or constructive, of such crops from the land." 8 Ruling Case Law, 358. Counsel for Woody seem to proceed upon the theory that Wagner and Neufelt have unlawfully appropriated the crop as against Woody, the mortgagee thereof. We have seen that Wagner and Neufelt acquired possession of the land and caused termination of the lease by paying to Conner all he was entitled to under the terms thereof, long before the crop was matured or severed from the soil. Now, Conner's title to the crop was at all times, until it was actually severed from the soil, subject to acquisition by Wagner and his grantee under the express terms of the lease. It seems quite clear to us that the giving of the mortgage by Conner to Woody could not in the least curtail this right of Wagner and his grantee, nor were they required to pay any attention to the rights of Woody as mortgagee. They were not garnisheed, nor did they hold anything in trust for Woody as mortgagee. What they did was in strict compliance with the terms of the lease under which Conner at all times held the land, and subject to which Woody took his mortgage on the crop. The judgment against appellant E. E. Wagner is reversed. The record before us does not show the rendering of any judgment, in terms, against appellant A. A. Neufelt, but, in so far as the decree and judgment might be construed as rendering Neufelt liable to any extent, it is reversed. MORRIS, C. J., and BAUSMAN, MAIN, and CHADWICK, JJ., concur. WHITE v. POWERS et al. (Supreme Court of Washington. Feb. 5, 1916.) 1. CONSTITUTIONAL LAW 309-LIENS It is so when the title passes by sale under a foreclosure of a mortgage upon the land, Rem. & Bal. Code, § 1157, provides that a when the mortgagor is the owner, and his ti- lien on chattels for labor and material may be tle to the crop is not impaired by some lease-enforced against the owner or persons interested hold or contractual interest in some other person. Jones v. Adams, 37 Or. 473, 59 Pac. 811, 62 Pac. 16, 50 L. R. A. 388, 82 Am. St. Rep. 766 Reily v. Carter, 75 Miss. 798, 23 South. 435, 65 Am. St. Rep. 621; McMaster v. Emerson, 109 Iowa, 284, 80 N. W. 389; 8 Ballard, Real Property, § 101. It is so when the title of a lessee passes back to the lessor by forfeiture of the leasehold interest, and it has been held that the voluntary surrender of the leasehold interest to the lessor carries by notice and sale in the same manner that a chattel mortgage is foreclosed, or by decree of any court exercising original equity jurisdiction. Section 1105 provides the form of notice on foreclosure of a chattel mortgage. Section 1106 provides that such notice shall be placed in the hands of the sheriff or other proper officer and personally served in the same manner as provided for by law for the service of a summons, provided that if the mortgagor cannot be found in the county of foreclosure, the general publication directed in section 1107 shall be sufficient. Section 1107 provides for publication as for sale on execution after notice to the mortgagor. Sec For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion 226, subd. 12, provides that summons shall be served on the defendant personally, or by leaving a copy thereof at the house of his usual abode with some person of suitable age and discretion therein resident. Section 228 provides for service by publication when the defendant cannot be found within the state, and the court has jurisdiction of the subject of the action. Held, that construing all the provisions together they were intended to provide for due notice, so that although the owner of personal property resided within the state, foreclosure of chattel mortgage or other liens could be lawfully made by a mere constructive service of notice, since the statutes do not violate Const. U. S. Amend. 14, and Const. Wash. art. 1, § 3, requiring due process of law, that requirement being fulfilled by proceeding according to the established forms of law and the grant of a right to proceed in equity. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. 309; Liens, Dec. Dig. 19.] 2. CONSTITUTIONAL LAW 305-"DUE PROCESS OF LAW." A general law administered in its regular course, according to the form of procedure suitable to the nature of the case, conformably to the fundamental rules of right, affecting all persons alike, is due process, the elements of which are notice and opportunity to defend, though due process does not require any particular form of proceedings. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 925-927; Dec. Dig. 305. Plaintiff filed a written notice of lien on an automobile directed in compliance with Rem. & Bal. Code, § 1105, and delivered to the sheriff a copy of the chattel lien notice and demanded that he take possession of the automobile and sell it to satisfy the claim. The sheriff prepared and posted in three public places in the County a notice reciting the lien, the name of the owner of the automobile, the default in payment, and giving notice of sale. The sale was thereafter made and proper return entered. The defendant was not a resident of the county of foreclosure, but resided in another county in the same state. After the sheriff's sale he conveyed the automobile and his claims and demands for damages to the plaintiff, who is now the owner. Held, that since the notice given failed to comply with the statutory requirements, the sale thereunder was in violation of Const. U. S. Amend. 14, and Const. Wash. art. 1, § 3, requiring due process of law, and was therefore void. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. 309; Liens, Dec. Dig. 19.] Department 2. Appeal from Superior Court, Lincoln County; Jos. Sessions, Judge. Action by H. P. White against Ed. Powers and others, copartners under the firm name of Powers, Etter & Colwell. From an order sustaining a demurrer to the complaint and dismissing the action on plaintiff's failure to plead further, plaintiff appeals. Reversed and remanded, with instructions. Hibschman & Dill, of Spokane, for appel lant. HOLCOMB, J. On October 14, 1913, one W. G. Nelms was the owner of a certain Avery truck automobile, with the serial number 953, motor number 8681, and on that day one E. A. Johnson performed labor and skill and furnished material in repairing it, amounting to $13.50. On December 22, 1913, Johnson, through his agent, filed a written notice of lien upon the automobile truck, describing it, in the office of the county auditor of Lincoln county, Wash., the filing and form of notice of lien complying with the provisions of section 1155, Rem. & Bal. Code. On December 29, 1913, Johnson, through his attorney, delivered to the sheriff of Lincoln county a copy of the chattel lien notice, and demanded that the sheriff take possession of the automobile and sell it for the satisfaction of the lien claim. The sheriff accordingly on that date took into his possession the automobile, and prepared and posted in three public places in the county a notice reciting the claim of lien, the name of the owner of the automobile, and the default in payment, and giving notice of sale of the automobile more than 10 days thereafter on January 9, 1914, at a specified place, at 10 o'clock a. m. The notice was signed by the attorney for the lien claimant as well as by the sheriff. On January 9, 1914, sale was made pursuant to the notice for the sum of $38.85 to the lien claimant, to satisfy his claim and costs, in all aggregating the amount for which the property was bid in, and of all of which the sheriff made return to the county auditor on the same day. On July 9, 1914, appellant filed his complaint against respondents, alleging the foregoing facts, and further alleging that at all the times mentioned Nelms was a resident of Spokane county, Wash., and was not at any of the times mentioned present in Lincoln county; that no notice of any kind was given to Nelms, except the posted notice of sale; that defendants obtained possession of the automobile by reason of some transaction with Johnson, and that in so doing they and Johnson ignored the rights of Nelms and of appellant, and respondents claim to have the title to the automobile by reason thereof and of the lien and foreclosure proceedings of Johnson, and not otherwise; that all of the proceedings to establish and foreclose the chattel lien were had under and by virtue of statutes relating thereto (specifically mentioned), but that the statutes relied upon are unconstitutional and void under the Constitution of Washington and the Fourteenth Amendment to the Con stitution of the United States, and attempted! provides that the summons shall be served to deprive Nelms of his property without due process of law; that Nelms duly conveyed all his right, title, and interest in the property to appellant by bill of sale, and his claims and demands for damages by an instrument in writing on May 7, 1914; that appellant is now the owner thereof; that the automobile was, at the time of sale referred to and now is, of the value of $1,500, and that Nelms, prior to May 7, 1914, had been injured and damaged by the detention thereof by respondents in the sum of $1,000. For the recovery of the automobile or the value thereof, and $1,000 damages for its detention, judgment was demanded. Defendants demurred upon all the statutory grounds. The demurrer was sustained and the action dismissed upon appellant refusing to further plead. [1-3] 1. The statute providing for a chattel lien in such cases as this provides (Rem. & Bal. Code, § 1157) that the lien may be foreclosed by the same two optional methods of procedure provided for the foreclosure of chattel mortgages. Sections 1105, 1106, and 1107, Rem. & Bal. Code, provide that chattel mortgages may be foreclosed by placing in the hands of the sheriff of the county a notice containing a full description of the mortgaged property with a statement of the amount due, signed by the mortgagee or his attorney; that the notice shall be personally served in the same manner as is provided by law for the service of a summons; that if the mortgagor cannot be found in the county where the mortgage is foreclosed, notice must be published in the same manner and for the same length of time as required in cases of the sale of like property on execution; that is, by posting written or printed copies of the notice of sale in three public places in the county for a period of not less than 10 days prior to the date of sale; that such notice shall be sufficient authority for the officer to take the mortgaged property into his immediate possession. These provisions of the statute were complied with, except that the sheriff made no certificate either of service of the notice of sale upon Nelms, or that he could not then be found in the county. The sheriff's proceeding was therefore prima facie defective. Appellant alleges that Nelms was not, at any of the times recited in the proceedings, present in Lincoln county, thus affirmatively showing that the prerequisite of "not found in the county" then existed, and a constructive basis of notice by publication in the manner provided by the foreclosure statute might have been certified by the sheriff. The statute relating to foreclosure of chattel mortgages upon which this proceeding was based provides that the notice shall be personally served in the same manner as provided by law for the service of a summons. The law providing the manner of serving a summons (Rem. & Bal. Code, § 226, subd. 12) by delivering a copy thereof to the defendant personally, or by leaving a copy of the summons at the house of his usual abode with some person of suitable age and discretion then resident therein. Section 228, Rem. & Bal. Code, provides that, when the defendant cannot be found within the state (of which the return of the sheriff of the county in which the action is brought that the defendant cannot be found in the county is prima facie evidence), and upon the filing of an affidavit of the plaintiff, his agent, or attorney, stating that he believes that the defendant is not a resident of the state or cannot be found therein, and that he has deposited a copy of the summons and complaint in the post office directed to the defendant at his place of residence, unless he has stated in his affidavit that such residence is not known to the affiant, and stating among other things that the defendant is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action, the service may be made by publication of the summons. It is provided, however, in section 1106, relating to service of notice of a sale under a chattel mortgage, that if the mortgagor cannot be found in the county where the mortgage is being foreclosed, it shall not be necessary to advertise the notice or affidavit in a newspaper, "but the general publication directed in the next section shall be sufficient service upon all the parties interested." The "next section" is section 1107, Rem. & Bal. Code, which provides that, after notice has been served upon the mortgagor, it must be published in the same manner and for the same length of time as required in cases of the sale of like property on execution. 2. Reading and construing these provisions of the various statutes together, it is plain that the legislative enactments intended to provide for due notice, and therefore due process of law. Appellant contends that a statutory enactment which allows foreclosure of a lien against a resident of the state without personal notice violates the constitutional provisions. Section 3, art. 1, Const. Wash.; amendment 14, Const. U. S. There are some authorities which support this view and hold that, where the owner of personal property resides within the state, foreclosure of a chattel mortgage or other lien upon the same can only be lawfully made by giving the owner reasonable notice aside from the mere seizure of the property, and constructive service is insufficient to confer jurisdiction. But that has never been universally followed. Due process of law means according to established forms of law, and the requirement is satisfied by the grant of a right to proceed in equity. Sisson v. Supervisors, 128 Iowa, 442, 104 N. W. 454, 70 L. R. A. 440. In this state it has never been questioned that the proceeding to foreclose a chattel mortgage by notice of sale and by such construc tive service of notice as the statute provides, case of Anderson v. Great Northern Ry. Co., if substantially followed, is valid. It was 25 Idaho, 433, 138 Pac. 127, cited by appelstated in State v. Allen, 2 McCord (S. C.) 55: lant, is in consonance with our views. In "I think therefore that any legal process which that case it was said: was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be an exception to the right of trial by jury, and is embraced in the alternative, 'the law of the land.' To the same effect are In re Hackett, 53 Vt. 354, and Weimer v. Bunbury, 30 Mich. 201. It will be observed that both the statutes relating to foreclosure of liens upon chattels and relating to foreclosure of chattel mortgages provide that the debtor, or any person interested, may remove a cause to the superior court and contest the right to foreclose as well as the amount claimed to be due. This proceeding recognizes the universal principle adopted in the law of the land that: "Due process of law means an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard; and where such opportunity is granted by the law a citizen cannot complain of the procedure to which he is required to conform." State ex rel. Barber Asphalt Paving Co. v. District Court, 90 Minn. 457, 97 N. W. 132. There is no vested right in any particular remedy or form of proceeding. A general law administered in its regular course according to the form of procedure suitable and proper to the nature of the case, conformably to the fundamental rules of right and affecting all persons alike, is due process. People v. Apfelbaum, 251 Ill. 18, 95 N. E. 995. The essential elements of due process of law are notice and opportunity to defend, but due process does not require that any particular form of proceedings be observed, but only that the same shall be regular proceedings in which notice is given of the claim asserted and an opportunity afforded to defend against it. Smith v. Medical Examiners, 140 Iowa, 66, 117 N. W. 1116; Public Clearing House v. Coyne, 194 U. S. 497, 24 Sup. Ct. 789, 48 L. Ed. 1092. give notice, either actual or constructive; and "No process is 'due process' which does not the debt has been created with the knowledge no 'taking of property' for debt is lawful, unless and consent of the debtor. This knowledge and consent may be constructive so far as it is necessary to create a charge against property, but the statute which furnishes the constructive notice must provide process by which the claims may be measured and established, so the property owner may have a ready and certain method of knowing or ascertaining his liability. No Isuch method is furnished by the statute under discussion." We think the case states the law correctly, but it does not apply to our statutes for foreclosing chattel mortgages or chattel liens. Our statutes provide for due process in that they provide for notice and for an opportunity to be heard in court to measure the claims and rights of the parties. [5] 3. In Robertson v. Mine & Smelter Supply Co., 15 N. M. 606, 110 Pac. 1037, the opinion reads as follows: "It appears that a suit was brought to foreclose a materialman's lien upon a mining claim and decree of foreclosure was awarded. The appellants, owners of the property, were not served with process of any kind. Upon a notice of a proposed sale under the decree of foreclosure appearing in the local newspaper, the appellants brought an action to enjoin the sale. The court complaint, from which judgment appellants apbelow refused the injunction and dismissed the peal. The foreclosure proceeding plainly violated the 'due process of law' clause of the Fourteenth Amendment of the Constitution of the United States. The essential elements of due process of law, as applied to matters of this kind, are notice and opportunity to be heard. Simon v. Craft, 182 U. S. 427, 436 [21 Sup. Ct. 836, 45 L. Ed. 1165]. The judgment of foreclosure was therefore absolutely void as against appellants, the owners of the property." That case is applicable to the case before us, for the reason that in the case before us the owner of the property and lien debtor was not served with process of any kind, but attempt was made to proceed upon pure In this state it was held that a statutely constructive notice without any certificate giving servants, clerks, laborers, etc., the and showing of necessity therefor; the lien right to claim from the proceeds of execudebtor being at the time a resident of the tion or attachment sale of the property of state and not even a prima facie showing their employers any amount not exceeding being made to the contrary. The proceed$100 due them for services rendered within ings in this case, therefore, plainly violated 60 days next preceding the levy of the writ, the due process of law clauses of the state and providing for the litigation of such and federal Constitutions, although in our claims if disputed, is not open to the objec- opinion the statutes sufficiently comply with tion that it deprives one of his property those constitutional requirements. The statwithout due process of law. Gleason v. Ta-utes themselves were not complied with. coma Hotel Co., 16 Wash. 412, 47 Pac. 894. The sale was therefore void. [4] It has also been held that, in proceedThe judgment is reversed, and the cause ings in rem, constructive service by publica- remanded, with instructions to reinstate the tion is sufficient to give validity to a judg-cause and overrule the demurrer. ment purely in rem, and constitutes due process of law. Wilson v. Beyers, 5 Wash. 303, 32 Pac. 90, 34 Am. St. Rep. 858. The MORRIS, C. J., and PARKER, BAUSMAN, and MAIN, JJ., concur. |