| N.Y. Sup. Ct. | Sep 25, 1890
Plaintiff, as executor and trustee, leased to one Gardner a farm for two years, ending April 1,1888, reserving to the lessor all rye sown on the farm in the fall prior to the termination of the lease. On the 16th of February, 1888, plaintiff and Gardner settled, and there was found due the lessor for accrued rents $400. On that day the plaintiff again leased the farm to Gardner for one year for $650, taking from Gardner on that day a mortgage on the rye then growing on the farm for $400, to secure the unpaid rent in arrears, and also another mortgage on the same rye for $650, to secure the rent agreed to be paid for the ensuing year. These mortgages were filed by the mortgagee in the proper town-clerk’s office on the 1st day of March, 1888. On the 10th of February, 1888, Gardner borrowed of Herman Plass, one of the defendants, $200, and gave him his note for the same, and at that time agreed to give him a chattel mortgage to secure that loan, and $94.25 of old account, for which he was indebted to Herman Plass. On the 17th day of February, 1888, Gardner executed and delivered a mortgage on this same rye, as security for the amount of this note and book-account, to Herman Plass, who on the same day caused the mortgage to be filed in the proper townelerk’s office. At the time of taking this mortgage, Plass had no knowledge of the existence of the mortgages to plaintiff. The rye covered by these three mortgages was harvested by Gardner while holding under the lease of February 16, 1888, and the straw from the same was delivered by Gardner, without the knowledge or consent of the plaintiff, to the defendants, who at the time of taking the same had knowledge of the plaintiff’s mortgage. After such delivery plaintiff demanded the straw of the defendants, who refused to deliver the same, and plaintiff brings this action.
The rights of the plaintiff- and defendants to this straw rests alone upon their respective mortgages, and, as between themselves, must be determined in favor of the one having the first or superior right by virtue of his mort
As between the plaintiff, who in this case was the landlord, and Gardner, the tenant, this rye was personal property, and might be mortgaged as such. Smith v. Jenks, 1 Denio, 580" court="None" date_filed="1845-10-15" href="https://app.midpage.ai/document/smith-v-jenks-6142306?utm_source=webapp" opinion_id="6142306">1 Denio, 580. In this case the tenant occupied land under a lease by the terms of which he was entitled to the growing crops, and it was held that he might mortgage it as a chattel by personal mortgage, while yet growing, and this was affirmed on appeal by the court of appeals, on the ground that both parties had treated the grass as a chattel. 1 N.Y. 90" court="NY" date_filed="1847-11-05" href="https://app.midpage.ai/document/jencks-v--smith-3631296?utm_source=webapp" opinion_id="3631296">1 N. Y. 90. But in Green v. Armstrong, 1 Denio, 554, the rule governing this class of cases seems clearly stated, and which, when applied to this case, is decisive of this question. In that case the court says: “The word ‘ land ’ is comprehensive in its import, and includes many things besides the earth we tread on, as waters, grass, stones, buildings, fences, trees and the like; for all these may be conveyed by the general designation of land. * * * They pass to the heir by descent as part of the inheritance, and not as personal chattels do, to executor or administrator; and, being strictly real property, they cannot be sold on an execution against chattels only. It is otherwise with growing crops, as wheat and corn, the annual produce of labor and cultivation of the earth; for these are personal chattels, and pass to those entitled to the personal estate, and not to tile heir.” They may be sold on execution like personal chattels. It follows, therefore, both within the definition given in the Code, § 3343, supra, and within the rule laid down in the cases, that this rye, at the time of the execution of these mortgages, was personal property belonging to Gardner, and liable to be mortgaged as a chattel by him. The case of Booth v. Kehoe, 71 N.Y. 341" court="NY" date_filed="1877-12-04" href="https://app.midpage.ai/document/booth-v--kehoe-3599575?utm_source=webapp" opinion_id="3599575">71 N. Y. 341, cited by the learned counsel for respondent on this point, has no application to this case. In that case the mortgage was of a lease or chose in action, and not a chattel. Chapter 279 of the Laws of 1833 provides that “every mortgage, or conveyance intended to operate as a mortgage, of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the thing mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed,” etc. The plaintiff, having failed to file his mortgage before the delivery of the mortgage to Plass, would for that reason, as against Plass, under his mortgage, lose his lien on this property, provided Plass is a mortgagee in good faith, within the meaning and intent of the act above quoted, unless he can claim some immunity from the terms of the lease of February 16th, which, for security for the rent, refers to the terms of the mortgage.
There are no provisions in this lease or mortgage that the title to this crop should remain in the plaintiff, as in the case of Andrew v. Newcomb, 32 N.Y. 417" court="NY" date_filed="1865-06-05" href="https://app.midpage.ai/document/andrew-v--newcomb-3623408?utm_source=webapp" opinion_id="3623408">32 N. Y. 417, cited by respondent, and it would seem that the most that could be claimed for that provision in that lease is that it was intended as a security, and as such was subject to the provision of the statute requiring mortgages to be tiled. Were the defendants in this case subsequent mortgagees in good faith? On the 10th of Febrnary, 1888, Plass loaned this $200, and at that
The report of the referee was right, and must be sustained, and judgment entered thereon affirmed. Judgment affirmed, with costs.