Cheatham v. Tennell's Assignee

• Decision Date: 30 May 1916
• Citation: 170 Ky. 429
• Parties: Cheatham v. Tennell's Assignee.
• Court: Kentucky Court of Appeals

170 Ky. 429

Cheatham v. Tennell's Assignee.

Court of Appeals of Kentucky.

Decided May 30, 1916.

Appeal from Nelson Circuit Court.

REDFORD C. CHERRY for appellant.

VICTOR S. KELLEY and JOHN S. KELLEY for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

In January, 1914, the appellant, George Cheatham, rented land to John Tennell, to be cultivated in tobacco. Under the contract of leasing one-half of the tobacco grown was to be Tennell's and the other half was to be Cheatham's. In February, 1914, Tennell sowed on the leased land a tobacco bed for the purpose of raising plants with which to set out the fifteen acres in tobacco that was to be grown under the rent contract.

On March 23, 1914, Tennell executed to Cheatham, his landlord, a note for six hundred dollars, and also a mortgage on his interest in the crop of tobacco to be grown and cultivated on the farm of Cheatham during the year 1914. $413.00 of the $600.00 note was made up of claims of Cheatham against Tennell in existence at the time of the execution of the note and mortgage, and the balance of the $600.00 was to be furnished by Cheatham to Tennell from time to time as it might be needed by him in cultivating the crop. It appears, however, that during the tenancy, and after the tobacco crop had been planted, Cheatham only furnished to Tennell provisions of the value of $95.00 to enable him to subsist while raising the crop, and this amount, together with the $413.00 previously advanced Tennell, was all that was actually advanced by Cheatham to him; and so to the extent of $92.00 the $600.00 note was without consideration, and as to this sum there is no controversy between the parties, nor is there any dispute as to the right of Cheatham to have a lien for the $95.00 furnished to Tennell after the tobacco had been planted.

In December, 1914, Tennell made a general deed of assignment for the benefit of his creditors to Victor L. Kelley, and under the deed of assignment the assignee, Kelley, took possession of Tennell's one-half interest in the crop of tobacco raised on the leased premises and which had not been sold at this time. Under an agreement between the parties the tobacco taken possession of by the assignee was to be sold and the proceeds held until it was determined whether the tobacco taken possession of by the assignee should go to Cheatham under his mortgage to satisfy the note, less $92.00, or to the assignee under the deed of assignment. In this controversy Cheatham insists that by virtue of his mortgage he had a lien on the tobacco superior to the claim of the assignee, Kelley. And it is further urged in behalf of Cheatham that although he might not be entitled to a lien strictly by virtue of his mortgage, in any event he had an equitable lien which was superior to the right of the assignee. On the other hand, the contention of the assignee is that the mortgage, executed by Tennell to Cheatham did not give him any lien on the tobacco except to the extent of $95.00, because at the time of the execution of the mortgage the tobacco was not in existence as it had not been planted.

Upon these facts the lower court ruled that Cheatham had a lien superior to that of the assignee to the extent of the $95.00 which had been furnished to Tennell under the lease contract and as a part of the $600.00 note secured by the mortgage for the purpose of enabling Tennell to subsist while raising the crop, but that as to the $413.00 due on the note Cheatham had no lien on the tobacco because it was not in existence when this part of the indebtedness embraced in the note was created.

Following this judgment Cheatham filed the record in the clerk's office of this court and prayed that an appeal be granted and the judgment of the lower court reversed.

Taking up first the issue as to whether under and by virtue of the mortgage alone, aside from any equitable rights growing out of the transaction, Cheatham had a lien on the tobacco to the extent of $413.00 superior to the claim of the assignee, we find this question has been settled adversely to the contention of Cheatham by more than one opinion of this court.

In Ross v. Wilson, Peter & Co., 7 Bush, 29, the court said: "The general rule is that at law a grant or mortgage of property to be acquired in futuro is void; and if it can be upheld in equity, we apprehend it is only valid as a contract to assign when the property shall be acquired, and not as an assignment of a present interest; and if enforceable in equity at all, it can only be enforced as a right under the contract, and not as a trust attached to the property. And whatever equitable rights Ross may have acquired as against Seibert by the attempt to mortgage property afterward to be acquired, it is obvious that, restricted as are the rights of mortgagors under our statutes of conveyance and registration, Ross derived by the mortgages no available right to the subsequently acquired property as against the creditors of Seibert." To the same effect are Loth & Haas v. Carty, 85 Ky. 591; Manly v. Bitzer, 91 Ky. 596.

In Hutchinson, McChesney & Co. v. Ford, 9 Bush., 318, which involved questions very similar to the ones here presented, it was determined, as stated in the syllabus, that "A mortgage of a crop to be raised on a farm during a certain term passes no title if the crop was not sown when the mortgage was executed, and the mortgagee has no claim against a purchaser of the crop for it or its value." To the same effect...