¶1— This action is replevin for a quantity of wheat in the bin. Defendant prevailed below and plaintiff appeals.
¶2In December, 1882, defendant and her husband were the owners of the premises upon which the wheat in controversy was afterwards grown. At that time they conveyed the same to W. E. Brinkerhoff as'trustee to secure an indebtedness to plaintiff. The defendant and her husband were residing on the land on which the wheat was grown at the time of the execution of the deed of trust and continued so to reside up to his death, which occurred in 1883. The defendant remained on the land until this suit was instituted, and in the fall of 1884 she rented the land on which the wheat was grown to one Ben Jones, one-third of the crop to be paid as rent. On the thirteenth of December, 1884, at the request of plaintiff, Brinkerhoff, trustee, sold the land under the deed of trust, and plaintiff became the purchaser at said sale, paid the purchase money and received from the trustee, a deed therefor. A short time after the sale plaintiff saw Jones, informed him that he had purchased the land, and at the same time exhibited his deed, and *438stated to Mm that he was the owner of the land upon which this wheat was growing, and that he must turn over or account to him (plaintiff) for one-third of the wheat then growing on the place. This Jones agreed to do. Jones afterward delivered the wheat in controversy to the defendant.
¶3There is no controversy here involving the rights of a tenant. No brief having been presented for defendant, it is difficult to see on what just or legal ground she can base a defense to this action. There has never been any question but that as between a mortgageor or a stranger and the mortgagee, a sale of the mortgaged premises covered growing crops. It is not necessary to consider the evidence on the question of attornment.
¶4The judgment will be reversed and the cause remanded with directions to enter the proper judgment for plaintiff.