chaser under a foreclosure and sale, he is entitled to the emblements, and may maintain trespass against the mortgagor or his lessee for taking and carrying away the crops growing at the time of the sale, the title and interest of the mortgagor being subject to, and liable to be divested by, a sale and foreclosure of the mortgaged premises," citing many authorities.

... •

And in Beckman v. Sikes, 35 Kan. 122, it is said: "The fact that the mortgagee ... sold the growing crop prior to the ... sale of land, does not vary the case, because he could not pass a title greater than his own; and therefore Sikes [the purchaser from the mortgagor] obtained no better right to the growing crop than Baker [the mortgagor] had or could give. Of course, the mortgage, as well as the decree of foreclosure, was only a lien upon the land, and conferred no title. The title and right of possession remained in the mortgagor until the sale and conveyance of the land. Until that time he was entitled to the use of the land, and to all the crops grown thereon that had ripened and were severed. The lien of the mortgage, however, attached to the growing crops until they were severed, as well as the land. The mortgagor planted the crop knowing that it was subject to the mortgage, 804 and liable to be divested by the foreclosure and sale of the premises. Anyone who purchased such crops from him took them subject to the same contingency, as the recorded mortgage and the decree of foreclosure were notice to him of the existence of the lien. If the land is not sold until the crops ripen and are severed, the vendee of the mortgagor would ordinarily get a good title; but if the land was sold and conveyed while the crop was still growing, and there was no reservation or waiver of the right to the crop at such sale, the title to the same would pass with the land," citing a multitude of authorities. And see 1 Pingree on Mortgages, secs. 880, 881.

The fact that Carter and the tenants in possession were not parties to the foreclosure suit-whatever effect that fact may otherwise have as to the remedy and the writs of assistance-does not alter the rights of the purchaser at the foreclosure sale, as against them. Those rights are just the same as if they had been parties, as clearly pointed out in Downard v. Groff, 40 Iowa, 598, 599.

Judgment reversed and cause remanded.

CROPS RIGHT TO UPON FORECLOSURE SALE OF LAND.— The sale of land under a deed of trust carries with it the growing crops sown by the mortgagor: Hayden v. Burkemper. 101 Mo. 644; 20 Am. St. Rep. 643. As between a purchaser of land on a fore

closure sale and the mortgagor's tenant, crops planted by the latter, and matured when the sheriff's deed is executed, although not severed, do not pass by the sale: Hecht v. Dettman, 56 Iowa, 679; 41 Am. Rep. 131, and note. The purchaser of mortgaged lands at foreclosure sale is not entitled to the ungathered crops as against a purchaser thereof from the mortgagor before the foreclosure: Willis v. Moore, 59 Tex. 628; 46 Am. Rep. 284. See extended note to Crews v. Pendleton, 19 Am. Dec. 753; First Nat. Bank v. Beegle, 52 Kan. 709; 39 Am. St. Rep. 865; Monday v. O'Neil, 44 Neb. 724; 48 Am. St. Rep. 760.

ROWZEE V. PIERCE.

[75 MISSISSIPPI, 846.]

DEDICATION TO PUBLIC USE-PRIVATE CITIZEN, WHEN MAY SUSTAIN SUIT TO PREVENT A CHANGE OF THE USE.-If municipal authorities are about to put property dedicated for use as an ornamental park to a different use, donors of such property, or any lot owner, and perhaps any private citizen, may maintain a suit to enjoin the proposed use.

MUNICIPAL CORPORATIONS-TITLE OF TO LANDS CONVEYED FOR A PUBLIC USE.-Where land is conveyed to a municipal corporation to be held only for public use as an ornamental park, subject to such regulations as it may make for fencing and ornamenting the same, keeping it in good order and preventing nuisances, it does not acquire an absolute title, and has no right to convey the land nor to put it to any use not consistent with that specified in the deed.

MUNICIPAL CORPORATIONS. UNLAWFUL CHANGE OF A PUBLIC USE-WHAT IS.-If land is conveyed to a municipal corporation to be held only as an ornamental park, it has no right to erect a schoolhouse thereon.

IF A MUNICIPAL CORPORATION ABANDONS A USE FOR WHICH PROPERTY WAS CONVEYED to it, it does not thereby acquire a right to devote it to some other and inconsistent use. On the contrary, the property reverts to the original donors.

J. D. Fontaine, for the appellants.

Blair & Anderson, for the appellees.

853 WHITFIELD, J. The original bill in this case charged that on the twenty-fifth day of May, 1854, a deed was executed by the grantors therein to the president and selectmen of the town of Pontotoc, and their successors in office, to lots Nos. 20 and 21 in the southwest quarter of section 33, township 9, range 3 east, "only for 54 public use as an ornamental park, subject to such regulations as they may make for the purpose of fencing and ornamenting the same, and keeping the same in good order, and preventing nuisances for anything tending to subvert the beforedeclared object of the donors of money to purchase the same"; that said dedication was duly consummated by acceptance on

AM. ST. REP., VOL. LXV.-40

the part of the public authorities; that the bcard of mayor and aldermen of the town of Pontotoc are the successors in office of the said president and selectmen of the said town of Pontotoc; that the said board of mayor and aldermen of the town of Pontotoc declared the said town to be a separate school district; that the school building the Pontotoc Male Academy-in which said separate school district school was taught, had been, on or about the twenty-eighth day of January, 1897, destroyed by fire; that the said board had contracted with one E. C. Pierce to erect another schoolhouse, and that said Pierce, instead of building said schoolhouse upon the site of the burned school building, or on land belonging to said Pontotoc Male Academy, had begun the construction of said building upon said lot No. 20, and he was doing this under the direction and with the consent and approbation of said board of mayor and aldermen; that complainants were lotholders within the corporate limits of the town of Pontotoc, without saying, however, whether their lots adjoined the public square or not; that the erection of said schoolhouse building upon said lots was putting them to a use other than that authorized by the terms of said deed of dedication, and was not consistent with or necessary to the principal use for which said dedication was made that of an ornamental park only; that the erection of the said schoolhouse building upon said lots was a direct and palpable violation of the use for which said lots of land were dedicated; and prayed an injunction against said Pierce and the said board of mayor and aldermen of the town of Pontotoc to restrain them from erecting said buildings upon said lots, and using said lots for schoolhouse 855 purposes, and to enforce the proper use of said lots according to the terms of the deed dedicating them.

This bill was filed on behalf of complainants and other resi dent citizens of said town. Subsequently, the complainants asked leave to amend their bill, by making J. F. Wray and W. J. Rogers, two of the original donors of the purchase money of the land, parties complainant. The original bill further alleged that the dedication was made subject to "such regulations as the city authorities might make for the purpose of fencing and ornamenting the same, and keeping the same in good order, and preventing nuisances, or anything tending to subvert the beforedeclared object of the donors of money to purchase the same." The language of the deed is as follows: "To have and to hold the aforesaid lots to the said party of the second part, and their successors in office, forever, but only for public use as an orna

mental park, subject to such regulations as they may make for the purpose of fencing and ornamenting the same, and keeping the same in good order, and preventing nuisances, or anything tending to subvert the before-declared object of the donors of money to purchase the same."

The defendants demurred to the bill upon the grounds: 1. That the complainants failed to show that they would be injured in any way whatever, either as taxpayers, property owners, or citizens of said town, or otherwise, by the building of said school house, and that they did not show that the construction of said building would be a public injury; 2. That the bill showed that the building of said schoolhouse would not cause any injury, special or peculiar, to complainants, or any injury other than such as would be common to all the citizens of said town; 3. That the complainants had no right to institute the suit, but that it should be brought by the proper public official on behalf of all the citizens of said town; 4. That the bill showed that said lots had been abandoned for the purposes for which they were dedicated, and that the said town, therefore, had acquired the right to use them for any other legitimate purpose. 856 Affidavits were taken by both parties. The chancellor disallowed the amendment, sustained the demurrer, dissolved the injunction, and dismissed the bill.

It may be conceded that the preponderance of the testimony showed that the public school building was being erected on one corner of the square, upon a part of the ground considerably cut up by gullies, and which the city authorities, or Pierce, had had filled up to make a foundation for the building.

The bill in this case is not filed to abate a nuisance, either public or private. The cases of Green v. Lake, 54 Miss. 540, 28 Am. Rep. 378, and Whitfield v. Rogers, 26 Miss. 84, 59 Am. Dec. 244, are both inapplicable here. And the case of Chicago v. Union Building Assn., 102 Ill. 379, 40 Am. Rep. 598, is also inapplicable, not being a bill filed on the line of the bill in the case at bar. Neither is this bill filed to enjoin the collection of taxes or of local charges. Cases of that character are also malapropos.

The amendment should have been allowed. And treating the bill as so amended, it would be one by the original complainants, and two of the original donors of the purchase money of the land dedicated to public use as an ornamental park alone, against the city authorities and the contractor, to restrain them from devoting the land dedicated to any other use than that named in the dedicating deed, and to secure to the town the very

use to which the owners of the property making the dedication declared it should be devoted. It is well settled that such a bill may be filed by such donors, as well as by the city authorities, and against the city authorities, restraining them from devoting the property to an inhibited use, when they themselves violate the trust by seeking to devote the land to any other than the declared use. And many authorities hold it may be maintained by any lotowner in the city: Church v. Portland, 18 Or. 73; 6 L. R. Ann. 259, and the exhaustive note thereto; Daniel v. Jackoway, 1 Freem. Ch. 59.

In the note at page 260, in 6 Law Reports, Annotated, it is said: "If the dedicated property be put to a use foreign to that contemplated by 857 the dedication, any property owner may inhibit such use": Citing many cases. And at page 262 the same doctrine is declared in the conclusion of the note, citing many other authorities: Warren v. Mayor, 22 Iowa, 351; Board of Education v. Edson, 18 Ohio St. 221, 98 Am. Dec. 114; 2 Dillon on Municipal Corporations, 4th ed., sec. 653, and the authorities in note 1, sec. 915. In this last section Mr. Dillon observes: "If the property of such a corporation be illegally or wrongfully interfered with, or its powers misused, ordinarily, the action to prevent and redress the wrong should be brought by and in the name of the corporation; but if the officers of the corporation are parties to the wrong, or if they will not discharge their duty, why may not any inhabitant . . . . be allowed to maintain in behalf of all similarly situated a class suit, to prevent or avoid the illegal or wrongful act? Such a right is especially necessary in the case of municipal and public corporations, and if it be denied to exist, they are liable to be plundered, and the taxpayers and property holders, on whom the loss will eventually fall, are without effectual remedy": Carter v. Portland, 4 Or. 339; Price v. Thompson, 48 Mo. 361; Commonwealth v. Rush, 14 Pa. St. 186. Jn Carter's case it is said that "any lotholder of the city may proceed in equity to enforce the use according to the original dedication": Citing numerous authorities: Briel v. Natchez, 48 Miss. 439; Rutherford v. Taylor, 38 Mo. 315; Le Clercq v. Gallipolis, 7 Ohio, 217; 28 Am. Dec. 641; note to Trask v. State, 27 Am. Dec. 569, under the title "Changing the Use," where Mr. Freeman says: "Where property dedicated is put to a use other than that authorized by the terms of the dedication, then the dedicator, or any lotholder of the city, may proceed in equity to enforce the proper use": 5 Am. & Eng. Ency. of Law, 418, note 1, and the authorities.