Brown v. Neilson

• Decision Date: 22 May 1901
• Docket Number: 9,354
• Parties: OLIVER S. BROWN, APPELLANT, v. O. A. NEILSON ET AL., APPELLEES
• Court: Nebraska Supreme Court

86 N.W. 498

61 Neb. 765

OLIVER S. BROWN, APPELLANT, v. O. A. NEILSON ET AL., APPELLEES

No. 9,354

Supreme Court of Nebraska

May 22, 1901

APPEAL from the district court for Sarpy county. Heard below before SLABAUGH, J. Affirmed.

AFFIRMED.

John P Breen and Charles S. Lobingier, for appellant.

Duffie Gaines & Kelby, contra.

OPINION

HOLCOMB, J.

Suit was instituted by the plaintiff below, appellant here, for the recovery of the sum of $ 900, alleged to be due as rental for the use of a farm occupied by defendants Neilson, appellees, as tenants under a written lease for a term of years. The rent claimed to be due was for the full year beginning March 1, 1895, and the first half of the year beginning March 1, 1896. The lease of the premises, upon which plaintiff based his right of action, was executed October 30, 1893, and being for the term of four years, commencing on the 1st day of March, 1894. In the petition, joined with the allegations for a recovery of a money judgment, the plaintiff pleaded a certain stipulation contained in the lease which, it is averred, gave to him a lien in equity on all the property of whatsoever description on the leased premises or brought thereon and belonging to the lessees, as security for the rent due and in arrears under the terms of the lease; and prayed a decree establishing a lien upon all such property for the amount for which judgment should be rendered in the action. On plaintiff's application a restraining order was also issued enjoining the lessees from transferring or removing any of their property from the leased premises. The answer denied the right of the plaintiff to a lien on any of the defendants' property for any sum, and raised other issues not here necessary to further notice. On the trial of the case the plaintiff recovered a judgment for the amount prayed, with interest, but was denied any relief on his application to have the amount found due to be a lien on the defendants' personal property, as prayed for in his petition. From the finding and decree denying him a lien, he appeals.

The clause in the lease, which is made the foundation for the plaintiff's claim to the enforcement of a specific lien in his favor on all the property of the defendants Neilson on the leased premises, is as follows: "And it is further expressly agreed and understood by and between the parties hereto, that all property of every name, character and description, belonging to said parties of the second part, that shall be on said premises or brought thereon by said second parties, during the term of this lease, shall be holden as security for the payment of the rents above reserved until all be paid, and the same shall be and remain a lien upon the same from year to year, until said payments of the rents for said entire term have been fully discharged and paid." Under these sweeping provisions the plaintiff contends that he is entitled to have a lien decreed in his favor for the amount for which he obtained judgment, on all personal property of all kinds belonging to the lessees, which they had belonging to them on the leased premises at the time of the service of the restraining order, issued as aforesaid. Just what this property is, is more or less involved in doubt, but it is claimed by appellant that a schedule of property and claim of exemption, filed by the lessee with the sheriff of the county, who appears to have been about to levy an execution thereon in another action, furnishes sufficient evidence as to the description and identity of the property to which his lien should attach. The claim of exemption was made by the lessee as the head of a family, and filed with the sheriff after the issuance of the restraining order in the case at bar. In it the defendant claimed his specific exemptions allowed him by statute, and in addition thereto property of the value of $ 500, he being, as alleged, the head of a family engaged in the business of agriculture and having no lands or town lots. The schedule of property showed items of personal property ordinarily belonging to one engaged in agriculture, such as cattle, horses, agricultural implements and household goods; also about 50 acres of growing corn and about 1,300 bushels of corn in the crib.

It is suggested by counsel for defendants that a stipulation of the character under consideration can not in equity be extended to cover and include the exempt property of the defendant allowed by law as the head of a family engaged in the business of agriculture, citing in support thereof, Vinson v. Hallowell, 73 Ky. 538, 10 Bush 538, and Seiling v. Gunderman, 35 Tex. 544. We prefer to address ourselves to the principal question presented by the appeal, and that is, whether a valid lien may be created on any property by the method adopted in this case; and, if so, in what manner can the lien be made effective? Whether any of the property was in existence at the date of the execution of the lease, is doubtful. Certain it is that all of it was unidentified and in no way described in the instrument, except as it might afterwards be brought on the leased premises; and for the most part the property consisted of growing corn and corn in the crib, not in existence until some time after the defendant occupied the leased premises, under the lease by which plaintiff claims.

Plaintiff's counsel, in his opening brief, concedes that the instrument conveyed no present lien on the property of the lessee afterwards raised or brought on the demised premises; but contends that the stipulation quoted should be construed as an agreement by the lessee to give a lien on all such property, after being brought on the premises, which ought to be enforced in equity in a suit to collect the rents in arrears, by a decree in the nature of specific performance, in pursuance of the familiar maxim that "equity regards as done that which ought to be done." In the reply brief by different counsel it is argued that the rule first stated is not broad enough, and that the instrument itself, and by virtue of its own force, should be treated as creating a lien or mortgage on the property, although not in existence at the time of the execution of the lease, and which attaches as an equitable lien when the property comes into being and within the terms of the stipulation, and that the lien is capable of enforcement in a court of equity. The stipulation does not comprehend, within its meaning, that the lessee will, after the property is acquired, execute a mortgage or other instrument incumbering the property for the benefit of the lessor. No original and independent contract creating a new lien can be inferred as the intention and contemplation of the parties, without doing violence to the language used. It does not purport to be an agreement to give, in the future, a lien on the property then owned by the lessees on the leased premises; but, by its own terms and provisions, the instrument evidences an attempt to establish a lien in future on property at the time not in esse. It is a contract, or attempt at contract, for a sale and transfer by way of mortgage, and not a contract to give a mortgage. If it is ineffectual to create a lien on the after-acquired property, we are of the opinion that it can not, under any well recognized rule, be made the foundation for a decree in the nature of specific performance, conceding that, in a proper case, a court of equity will decree specific performance of a contract of a sale of, or to give a mortgage on, chattel property. Unless the stipulation under consideration in the instrument can be upheld as creating, in favor of the lessor, a lien, legal or equitable, on the crops grown on the leased premises, or on property brought thereon after the execution of the lease, we think it must entirely fail as having any vitality or force for any purpose. It is not argued, nor will it be seriously contended, that the clause quoted conveys any legal interest in or lien on the property of the lessee not then in existence or owned by him, but which was afterwards brought into existence and on the leased premises. The authorities are unanimous that a legal estate or interest can not be conveyed in property which has no existence. The question then is, will such an agreement create a lien of an equitable character, attaching to the property when it comes into existence and is brought within the terms of the stipulation in other respects? On this the authorities are divided. The exact nature of the contract, therefore, becomes material in arriving at a proper conclusion. Such a contract is usually defined as executory in character, requiring something further to be done in the future by the parties thereto, before a good title will pass to and be perfected in the lessor or mortgagee.

In an early case, and one that is frequently cited by the courts holding to the doctrine that property not in esse is not the subject of transfer by way of mortgage, it is said regarding the nature of such a contract: "A stipulation that future acquired property shall be holden as security for some present engagement, is an executory agreement, of such a character that the creditor with whom it is made may, under it, take the property into his possession, when it comes into existence, and is the subject of transfer by his debtor, and hold it for his security; and whenever he does so take it into his possession, before any attachment has been made of the same, or any alienation thereof, such creditor, under his executory agreement, may hold the same; but, until such an act done by him, he has no title to the same; and that, such act being done, and the possession thus acquired, the executory agreement of the debtor authorizing it, it will then become holden by virtue of a...