37 How. Pr. 59 | N.Y. Sup. Ct. | 1868
The plaintiff, as between him and Tifft, had only the interest in the hay in question of a chattel mortgagee; for such in fact was the clause in the lease from Miller & Bumble to Tifft, by which it was stipulated that Miller & Bumble were “ to have full title, with the privilege of taking possession at any and all times, of any and all products of the farm, in payment of the balance due on the rent at the last factory sale.”
The lease to Tifft of the premises was absolute, and with the exception of the proceeds of three-fifths of the milk to be sold to the cheese factory, he was the owner, and was entitled to the possession of it, and the clause above set forth was a mere security for money; and necessarily in the nature of a mortgage. But it is argued by the counsel for the plaintiff that it was not a mortgage, and that the title to such hay as should grow on the place did not pass to Tifft, because he stipulated in the lease that he would cut and get in in good order all the hay, and that he would feed out the hay and straw in a saving manner, and because it was further stipulated that he was “ to have the privilege of keeping a span of horses all the time, and a third horse during haying,” which, it is claimed, is inconsistent with the idea that the title to the hay was to be in him.
The answer to the argument is' perfectly manifest. By the terms of the lease, Miller & Bumble bound themselves to supply all such hay as was necessary to winter the stock after the hay and straw raised on the place was, exhausted; and therefore they were interested in limiting the amount of stock to be kept, and in providing that all the hay and straw should be saved and carefully used, as though the title to it was in them.
The covenant on the part of Tifft to save all the hay and straw, and to carefully feed it to the stock, and to keep but two horses except during haying time, was only an agreement binding on him at law, and if he chose to keep more horses, or to sell or improvidently use the hay, it did not authorize Miller & Bumble to interfere with it, either by taking possession of it, (for they were entitled to possession only as security for the unpaid rent,) or to restrain such use of it by injunction.
If so improperly used, Miller & Bumble had but two remedies. They could refuse to supply the deficiency thus caused, or sue at law upon the broken covenants.
As the only title that Miller & Bumble had to the hay was that of chattel mortgagees, that was the title they transferred to the plaintiff by the assignment to him of the counterpart of the lease. It was never filed as required by the statute, to make it valid as against the creditors of Tifft. Tifft was in the actual possession when the levy and sale took place, and therefore the plaintiff cannot recover. This question strikes at the foundation of the plaintiff’s claim. There is no claim that the lease had' ever been filed; and even if there were errors committed on the trial, a new trial would be useless, and I therefore see no necessity for examining the other questions raised in the case.
A new trial should be denied, and judgment entered upon the verdict, for the defendant.
Judgment accordingly.
Bacon, Morgan, MuUin and Foster, Justices.]
