¶1 (dissenting). In 1915, Mrs. Johanna G-angloff executed a deed conveying 480 acres of farm land in Union county to Patrick A. Foley, one of the three grandchildren to whom she intended to make a gift of the land. She retained possession, however, until April 26, 1922, when the deed was recorded. On September 16, 1922, in conformity to the intention of his grandmother, Patrick Foley conveyed an undivided one-third interest in the land to his brother, Jerome J. Foley, and a like interest to his sister, Mrs. Bouvy. Later and in January, 1923, he sold and conveyed his own one-third interest therein to his said sister.
¶2*339 The land is wheat land and, as sneh, has to be summer-fallowed and lie idle every other year and, in order to raise a crop each year, it is necessary that one-half of the land be sowed to wheat one year and the other half the following year, and this has been the custom which has been followed up to and including the year 1936.
¶3 In May, 1924, Jerome Foley and Mrs. Bouvy, in order to enable them to borrow certain sums of money, decided to subdivide the land into three equal parts of 160 acres each and to convey one of said tracts to Jerome Foley, one to Mrs. Bouvy, and the other to Doctor Bouvy, the husband of Mrs. Bouvy. This they did, and at the same time they entered into a written agreement as follows:
“… That whereas Jerome J. Foley is the owner of an undivided one-third interest and Henrietta A. Bouvy is the owner of an undivided two-thirds interest” in said lands, describing them, “and it is the desire of the parties hereto that the titles be segregated and divided among them at the present time for the purpose of allowing the parties to this contract to obtain loans upon the separate tracts but it is further desired by the parties hereto that the total valuation of the said property as described shall still belong to the said parties in the proportionate parts as herein-before set forth, to-wit: one-third and two-thirds, and the annual rental received from the said property shall be divided as set forth and the entire property shall be treated as one property for the purpose of rental by the said parties or sale, and no rental or sale shall be made by either party of the separate parts that are deeded to "the separate parties under this contract but the entire tract shall be treated in entirety for all purposes both of rental and sale, and the payment of taxes against the same, and any rental thereof or sale thereof shall be made by mutual consent of the parties hereto and not otherwise and the proceeds of such rental or *340 sale shall be divided in the proportion as hereinbefore set forth, to-wit: one-third to Jerome J. Foley and two-thirds to Henrietta A. Bouvy.”
¶4 Thereupon each of said three parties borrowed from the state land board the sum of $5,000 and secured payment thereof by severally executing a mortgage upon the lands separately owned by them. The Bouvys paid their two mortgages but Jerome Foley failed to pay his mortgage and the same was foreclosed and his 160 acres of land was sold to the state land board and the sale confirmed on June 10, 1936, and it has not been redeemed.
¶5 In 1924, the said owners, in conformity with their written agreement, jointly let the entire tract of 480 acres to Enoch Johnson for a term of three years and this lease was renewed every third year thereafter, the last renewal of which did not expire until the expiration of the year 1936. Up to and including the year 1935, Johnson paid all of said rentals to Doctor Bouvy and he distributed one-third thereof to Foley and the other two-thirds to himself and wife. In 1936, however, the entire rental for the 480 acres of land was paid to Bouvy but, because of said foreclosure sale, he refused to pay any part thereof to the plaintiffs and, because of such refusal, the plaintiffs brought this suit to compel him to account for Foley’s one-third interest in the rentals received for that year. The cause was tried and a decree entered in favor of the plaintiffs, from Avhich the defendants have appealed.
¶6 According to the evidence, the 160 acres of land conveyed to Jerome Foley has been devoted wholly to the raising of wheat and a crop has been raised thereon every second year up to and including the year 1935, but in 1936 it was in summer fallow and no crop of any kind was produced thereon during that year. The lease, *341 however, included the entire 480 acres of land and did not expire until the end of the year 1936. Consequently, and the evidence so shows, the amount of rental which Johnson paid to Bouvy for the year 1936 under said lease was not diminished or lessened to any extent or amount whatever by reason of the foreclosure sale of Foley’s part of the land. The evidence shows that wheat is harvested on that land in July and the early part, of August of each year and, as stated, the sale was made in June of that year and confirmed on June 10, 1936. Consequently, since the premises at the time of the sale were in the possession of a tenant holding under an unexpired lease, had a crop been raised thereon, the tenant, under section 3-510, Oregon Code 1930, would have been entitled to receive such crop and would only have been compelled to pay to the purchaser the rents or value of the use and occupation thereof from the time of sale until the expiration of his lease and since, as the evidence shows, no crops were raised thereon during the year 1936, and the amount of the rental that Johnson had stipulated to pay for the year 1936 for the entire 480 acres of land was not a cash rental but was dependent upon the amount of the crop raised on the entire tract of 480 acres, nothing did or could become due from Johnson to the state land board because of his tenancy after the sale and during the remainder of the year. Moreover, it is not contended that the state land board ever served any notice to quit upon the tenant or ever interfered with the tenant’s possession of the foreclosed land at any time during the year 1936.
¶7 According to the contract existing between Foley and the Bouvys and also according to the lease contract between Foley and the Bouvys on the one hand and Johnson on the other, one-third of all rentals stipulated *342 by all of said parties to be paid for the entire 480 acres of land was to be paid to Foley, and this included the year 1936. Had a crop been raised on the foreclosed lands during 1936 and had Johnson been compelled to account and pay over any sum of money to the state land board for his tenancy during that year and that amount had been deducted from the rental which he was required to pay under his lease, then a different question would be presented. But when it was shown as here, that the amount which was stipulated to be paid for that year was actually paid to and received by Bouvy as rental not for his own and his wife’s lands alone but for the entire 480 acres and was the identical amount which would have been paid had there been no foreclosure during that year, then it follows as a matter of natural justice and equity that one-third thereof belonged to the plaintiffs and, when received by Bouvy, was money had and received by him for their use and benefit, and, from this, it follows that the decree appealed from should be affirmed.