
    Pliny T. Sexton, Survivor, App'lt, v. Henry Breese, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1892.)
    
    Mortgage—Mortgagee in possession.
    The owner of a farm in 1873 executed and delivered to plaintiff’s firm a mortgage thereon as collateral security for any liability which the mortgagor might thereafter incur, and it was to become due by its terms after demand. In February, 1879, the owner left the place, allowing the defendant, to whom he was in debt for money borrowed, to have possession, of the farm and in March he sold defendant the growing crop of wheat which he had himself sowed the previous autumn; the bill of sale giving-to defendant the right to secure and harvest the crop. In April the owner authorized plaintiff ‘ ‘ to take possession of my farm at Macedón and to= rent same * * * and after paying all expenses to apply the net income-upon my indebtedness to him.” He took possession, and when the wheat had ripened the defendant went upon the farm to cut it, but was prevented from doing so by the plaintiff, who proceeded to harvest it for himself, but before he had gotten in the wheat from the field defendant entered early in the morning and carried it off. Held, that plaintiff was not a mortgagee in possession, but merely had the right to rent the place and, apply the net income upon the indebtedness, and defendant had the right of ingress to gather and carry away the crop.
    Appeal from a judgment of the supreme court, general term,, fifth department, denying motion for new trial on case and exceptions ordered to be heard in the first instance at the general term., after a verdict for defendant at the circuit.
    
      S. B. McIntyre and Charles McLouth, for app’lt; M. Hopkin, for resp’t.
    
      
       Affirming 32 St. Rep., 262.
    
   Gray, J.

The action was in replevin, for the purpose of recovering a crop of wheat which had been harvested from a farm and the question presented relates to the respective rights thereto-of the plaintiff; as mortgagee of the farm, and claiming to be in possession as such, and of the defendant as the vendee of the= growing crop, under a bill of sale from the owner and mortgagor. The mortgage was executed and delivered in 1875 to the plaintiff's firm as a collateral security for any liabilities which the-mortgagor might thereafter incur, and was to become due, by its. terms, one month after demand. Ir February, 1879, the owner of"' the farm left the place, allowing the defendant, to whom he was in debt for moneys borrowed, to have possession of the farm and to work it for himself. In 'the following month he sold to the defendant the standing, or growing crop of wheat in question, and which he had himself sowed in the previous autumn; the bill of sale giving to defendant the right to secure and harvest the crop. In the following month of April the owner of the farm executed and delivered a certain instrument to the plaintiff, wherein he authorized him “ to take possession of my farm at Macedón, and to-rent same * * * and after paying all expenses, to apply the net income upon my indebtedness to him.” He entered upon the farm, under this instrument, and it is his claim that thereby he became mortgagee in possession. When the wheat had ripened, the defendant went upon the farm to cut it, but was prevented from doing so by the plaintiff, who proceeded to harvest it for himself. Before, however, the plaintiff had gotten in the wheat from the field, the defendant entered, early in the morning, and carried it off. This action then resulted.

I do not think that the instrument, under which the plaintiff -entered into the possession of this farm, had the effect of making that possession that of the mortgagee, as that is technically understood. Its very terms seem to preclude that idea; for the possession which the plaintiff was authorized to take was qualified and limited to the exercise and enjoyment of certain prescribed acts; namely, to rent it and to apply the net income upon the indebtedness. The mortgage had not become due; inasmuch as there had been no demand for the payment of any indebtedness accrued and to be secured by it; or, at any rate, such a demand as the nature of this mortgage required. But I do not think it very important to our decision whether we hold that the possession was technically that of mortgagee; or one authorized by and assumed under the writing referred to. Although, if that question should be deemed essential, I should regard the possession taken by plaintiff, through this instrument of April, 1879, as not equivalent to a possession by surrender of the land from the mortgagor. In this state it must be regarded as settled by the cases that the title of the mortgagor to the land is not changed by the mortgage. It remains as beforé, while the mortgagee has in the mortgage a security for -the mortgagor’s debt, which is impressed upon the lands (described and incumbers them with the burden of the debt It must also be regarded as settled that even if the mortgagee goes into possession of the premises by a surrender of them from the mortgagor, the legal title or fee still remains in the mortgagor; and what the mortgagee thereby acquires is the possession of the pledged property. He holds it then for the purpose of paying.off the debt with which it was incumbered; but takes no estate in the land. Kortright v. Cady, 21 N. Y., 343; Trimm v. Marsh, 54 id., 599. In Trimm v. Marsh, the question of the effect upon the title, where the mortgagee acquires the possession of the land, was quite fully discussed, upon theory and in the light of earlier cases, and the decision should be considered as settling, and, as I think, quite in accordance with the reason of the thing, that a mortgagee who merely is let into the possession of the mortgaged land does not acquire the legal title.

If we assume that the plaintiff was in possession of the land as by an actual surrender from the mortgagor, his rights in its use were subject to the previous disposition made of the growing crop of grain by the owner of the land. He had planted the crop and it was perfectly competent for him to dispose of it while he held the title to the land. Though, in a sense, a growing crop of grain, is a part of the real estate, it, nevertheless, possesses the characteristics of a chattel and is saleable and transferrible as other personal property is, and may be taken upon execution and sold in discharge of a judgment debt Whipple v. Foot, 2 Johns., 422 ; Stall v. Wilbur, 77 N. Y., 158. The relation which growing crops bear to the land has been frequently the subject of discussion in the courts, and is in some respects a peculiar one. They pass to the grantee in a conveyance of the land, as appertaining thereto. Wintermute v. Light, 46 Barb., 283 ; Stall v. Wilbur, supra. And equally upon a sale in foreclosure of a mortgage, the purchaser would acquire with the title to the land the right to the growing; crops. Shepard v. Philbrick, 2 Denio, 174.

In England, growing crops which were fructus industriales, that is to say, annual products of a tillage of the earth by the labor of the occupier, have been regarded as chattels, quite independent of the land. Any supposed confusion in the decisions, with respect to their relation to the land, arose rather in the consideration of the question of the validity of- their transfer by paroi, under the statute of frauds, than in any difference in opinion as to their being chattels.

Distinctions, of course, were made between growing crops of grain, and trees, the fruits of trees and perennial plants. Crosby v. Wadsworth, 6 East, 602; Evans v. Roberts, 5 B. & C., 829: Jones v. Flint, 10 Ad. & E., 753; Rodwel v. Phillips, 9 M. & W., 501.

Those views, as to the legal relation of these annual products of the land to the land itself, obtained and were held here in the early cases of Whipple v. Foot, supra; Shepard v. Philbrick, supra ; Green v. Armstrong, 1 Denio, 550, and more recently in the case of Stall v. Wibur, to which I have referred. Probably the rights of a third person to the growing crop of grain, under a contract of purchase with the owner, would be annulled by the sale upon the foreclosure of a mortgage of the land, according to the decisions in Shepard v. Philbrick, supra, and Lane v. King, 8 Wend., 584, for then the transfer of the title to the mortgaged premises would carry with it to the purchaser a paramount title to the growing crop. But, in the present case, that proposition is not before us and the title of the mortgagor to the mortgaged land was not divested or transferred to the mortgagee with the possession. The defendant Breese was the purchaser of the growing crop of wheat and, upon its becoming ripe for harvesting, as well under the express authority of his bill of sale, as without it, impliedly, he had the right of ingress to gather and to carry it away. Stewart v. Doughty, 9 Johns., 108. His vendor’s legal title to the land had not ceased and the fact of the mere possession having changed to another person was not sufficient to annul Breese’s contract, and was, consequently, inoperative upon his right to enter and carry away the ripened wheat.

We think the conclusion reached by the general term that the defendant was entitled to the verdict at circuit was correct and, as no other errors appear from the record, their order denying plaintiff’s motion for a new trial upon his exceptions,- and directing judgment on the verdict, should be affirmed, with costs.

All concur.  