Rochester Distilling Co. v. Rasey

• Decision Date: 05 June 1894
• Citation: 37 N.E. 632,142 N.Y. 570
• Parties: ROCHESTER DISTILLING CO. v. RASEY.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 570

37 N.E. 632

ROCHESTER DISTILLING CO.

v.RASEY.

Court of Appeals of New York.

June 5, 1894.

Appeal from supreme court, general term, fifth department.

Replevin by the Rochester Distilling Company against Asa Rasey. From an order of the general term (22 N. Y. Supp. 1122) reversing an order of the special term (20 N. Y. Supp. 583), defendant appeals. Affirmed.

In February, 1890, the plaintiff recovered a judgment against one Lovell for $147.44. In April, 1890, Lovell, being the lessee of certain farm lands, in order to secure one Page as an accommodation indorser and for the repayment of money borrowed from him, executed and delivered to him a chattel mortgage which covered ‘the grass now growing upon the premises leased,’ etc.; ‘also, all the corn, potatoes, oats, and beans which are now sown or planted, or which are hereafter sown or planted during the next year,’ etc. At the time but a small part of the land had been planted with potatoes, and the greater part of the planting of potatoes and all that of the beans was done in the following month. On July 5th an execution was issued upon plaintiff's judgment, and the sheriff levied upon the growing crops, and advertised their sale in August; at which sale plaintiff purchased them. After the levy by the sheriff, Page, the chattel mortgagee, on July 15th foreclosed under his mortgage, gave notice, and sold the growing crops to the defendant. Defendant took possession of the property so purchased, and this action was brought to recover its possession. The trial judge, being moved by each of the parties for a verdict in his favor, directed it for the plaintiff as to the beans and for the defendant as to the potatoes, and ordered the exception taken to that direction to be heard in the first instance at the general term. That court sustained the plaintiff's exception to the ruling of the trial judge, and ordered a new trial, but allowed an appeal to this court, on the ground that a question of law was involved which ought to be reviewed.

De Merville Page, for appellant.

George D. Reed, for respondent.

GRAY, J. (after stating the facts).

I think this case does not, in principle, differ from any other case where a chattel mortgage has been given upon property in expectancy, and which has no potential existence at the time of its execution. The fact that the subject of the mortgage is a crop to be planted and raised in the future upon land does not affect the determination of this question upon established principles. It may be that precisely such a case, in its facts, has not been passed upon in this court; but there are expressions of opinion in several cases of a kindred nature in the Reports of this court and of other courts in this state which leave us in no doubt as to the doctrine which should govern. The proposition that a mortgage upon chattels having no actual or potential existence can operate to charge them with a lien when they come into existence, as against an attaching or an execution creditor, has frequently been discountenanced and repudiated. Grantham v. Hawley, Hob. 132, is the general source of authority for the proposition that one may grant what he has only potentially, and there is no good reason for doubting that that which has a potential or possible existence, like the spontaneous product of the earth or the increase of that which is in existence, may properly be the subject of sale or of mortgage. The right to it when it comes into existence is regarded as a present vested right. That which is, however, the annual product of labor and of the cultivation of the earth cannot be said to have either an actual or a potential existence before a planting. This action being one at law, the inquiry is limited to ascertaining the strictly legal rights of two contending creditors to the property of their debtor, Powell, in the crops which he had raised. It is unlike some of the cases which have arisen between the lessor of land and his lessee. In such a case, a different principle might operate to create and support the lien of the landlord upon the crops as they come into existence upon the land. The title to the land being in him, an agreement between him and the lessee for a lien upon the crops to be raised to secure the payment of the rent would operate and be given legal effect as a reservation at the time of the title to the product of the land. That was the case of Andrew v. Newcomb, 32 N. Y. 417, where the owner of land agreed with another that he might cultivate it at a certain rent, the crop to remain the property of the landlord until the tenant should give him security for the rent. Judge Denio repudiated the idea that the arrangement could be called a conditional sale of the flax, because the subject was not in existence. He held that the idea of a pledge or of a sale had no application, and that the effect of the contract was to give to the landlord the original title to the crop. His remarks upon the subsequent vesting of the title to crops, when they come into being, have reference to such an arrangement between landlord and tenant, and not to the case of a mortgage or conditional sale to some third person of crops yet to be planted. Mr. Thomas, in his work on Chattel Mortgages, upon the subject of mortgaging a crop not yet planted, says (section 149): ‘The weight of authority inclines to the view that the lien is an equitable one, and differs in some respects from the charge created by a mortgage of property in existence at the date of the agreement.’ And, again, he says: ‘The authorities are mainly to the effect that such a mortgage conveys no title or interest as against attaching or judgment creditors of the mortgagor.’ About this question of mortgaging personal property to be subsequently acquired much has been written in the books which I deem unnecessary to...