By the Court,
The defendant in error claimed the grain in controversy, by virtue of a chattel mortgage, given upon it, about the time the grain was sowed and planted, and before the same was up or presented the appearance of growing grain, and the circuit court instructed the jury upon this point, that as soon as the grain was sown, Hatch, the tenant, could mortgage his half of the crop, and that the same would be held by the mortgage. This instruction we consider erroneous. In our opinion a chattel mortgage can only operate upon property in actual existence at the time of execution, and cannot be given, as was attempted to be done in this case, upon a crop before it can be said to be in existence. Since the subject matter of the chattel mortgage was not in esse at the time the mortgage was executed, there was nothing for it to operate upon. This doctrine seems to be settled by the following authorities: The Bank of Lansingburg vs. Crary et al. 1 Barb. S. C. R. 542. Otis vs. Sill, 8 id. 102, and the cases cited and commented upon by Justice Paige in these decisions. As this question disposes of this case and involves the necessity of a new trial, we do not feel called upon to notice the other points upon the briefs of counsel.
The judgment of the circuit court is reversed and a new trial ordered.