
    Eben S. Coe versus John H. Wilson.
    Where, by the terms of the lease of a farm, occupied by the lessee, it is stipulated that “ all the hay and straw shall be used on said farm,” the hay raised thereon by the lessee is subject to this condition, and cannot be attached or taken on execution by his creditors.
    This was an action of trespass, brought by the owner and lessor of a farm, against a deputy sheriff, who attached a quantity of hay raised thereon, as the property of the lessee. The attachment was upon a writ in favor of one .of the .creditors of the lessee, and the hay was afterwards sold on execution.
    The following is a copy of the lease-:—
    
      “ This memorandum of agreement by and between E. S. Coe on the one part, and H. D. Watson on the other part, witnesseth, that said Watson agrees to take and manage the Lawrence farm, in Newport, upon the following conditions, viz.: — to occupy the best house with his family, lease the other house, and collect and account for half the rent yearly, cultivate and plough such portion of the fields as required from time to time, and cut the grass in good season, and do all the farming work in good and proper season, and carry on said farm in good and husband-like manner, and do all that is necessary to keep the fences in good repair, and deliver to said -Coe, or sell for his benefit, one-half of all the products of said farm yearly, and one-half of all the growth on the stock, when the same is sold, all of said hay and straw to be used on said farm; said Watson to furnish all the tools, excepting one set of cart wheels and carts and one breaking up plough, and pay one-half of the taxes yearly. Said Coe agrees, on his part, to furnish said Watson with the stock for the farm, viz.: — one yoke of oxen, two cows, one horse, two shoats, and such other stock as may be necessary for the farm, and one large plough and one set of cart wheels, — all to be charged at cost; and when said stock is sold, one-half of all gain or loss to belong to said Watson; and said Coe to pay for all manure and plaster of Paris put on the farm this season, and pay for setting over the fences around the field, and repair the house and barn. When said Watson leaves the premises, the stock is to be appraised, and hay, and one-half of all the gain or loss to belong to him. This agreement to continue from year to year, unless otherwise altered, and continue in force as long as said Watson remains on said farm; and, when he intends to leave, he is to give six months’ notice. All of said stock and tools furnished and to be furnished, to be and remain the property of said Coe; all my part of the crops and the growth of stock to be held as collateral security to pay my notes to said Coe, and advances, from time to time, until paid in full with interest.”
    Signed, “E. S. Coe. “Henry D. Watson.”
    The foregoing lease was made May 8, 1854, and Watson immediately took possession of the farm, and continued in the-occupation thereof until after the commencement of this suit. He cut the hay on the farm in 1851, and, after it was put in the barn, August 26th, a part of it was attached by the defendant, upon a writ in favor of one Sullivan Lothrop.
    The case was argued by A. W. Paine, for the plaintiff.
    
      D. D. Stewart, argued for the defendant.
    The contract between the plaintiff and H. D. Watson, provides that Watson shall “ carry on the farm,” on which the hay grew, “ in good and husband-like manner, and deliver to said Coe, or sell for his benefit, one-half of all the products of said farm, yearly, and one-half of all the growth on the stock, when the same is sold.”
    Towards the close of the contract the following language is used: — “This agreement to continue from year to year until otherwise altered, and continue in force as long as said Watson remains on said farm, and, when he intends to leave, he is to give six months notice.”
    This contract is clearly a lease from year to year, in the strictest sense of the law, with a proviso for six months notice to quit; the farm to be carried on for a rent of one-half of the crops.
    For any breach of the lease by Watson, the remedy is by -suit at law. All the crops are raised by the labor of Watson, and are his property until a division and delivery to Coe. No such division or delivery has ever been had, and the hay was liable to attachment on Watson’s debts. The case falls directly and fully within numerous decisions of this Court. It is unnecessary to cite more than three. Turner v. Bachelder, 17 Maine/ 257; Symonds v. Hall, 37 Maine, 354; Garland v. Hilborn, 23 Maine, 442.
    The closing language of the lease is as follows: — “ All my part of the crops, (i. e. all Watson’s part,) and the growth of stock, to be held as collateral security to pay my notes to said Coe, and advances from time to time, until paid in full with interest.” This is undoubtedly a mortgage to the plaintiff, in terms. But when it was executed, on May 8, 1854, the property was not in existence. It was therefore invalid, as against an attaching creditor. Jones v. Richardson, 10 Met. 481; Head v. Goodwin, 37 Maine, 181; Chapin v. Cram, 40 Maine, 561.
    Besides, the mortgage was never recorded, nor was there ever any delivery of the property to the mortgagee.
    For these reasons, also, the mortgage was invalid as against an attaching creditor. Bailey v. Fillebrown, 9 G-reenl. 12.
   The opinion of the Court was delivered by

Hathaway, J.

Henry D. Watson had the possession and management of the plaintiff’s farm, in pursuance of the contract of May 8, 1854. The question presented is whether or not the hay, which Watson cut on the farm, under that contract, was his property, and liable to attachment as such by his creditors. One of the stipulations in the contract was that all of the hay and straw should be used on the farm.

The case is not distinguishable in principle from Lewis v. Lyman, 22 Pick. 437, in which case the Court said what may, with equal truth, be said of the contract in this case, that, “ taking the whole contract together, it is manifest that the tenants had a limited right or interest in the hay and fodder; to wit: only such a right or benefit as would result to them, from having it given to the stock upon the farm, whereby their proportion of the produce of the dairy and of the produce of the stock would be increased.” See also Moore v. Holland, 39 Maine, 307. The cases relied upon by the defendant were essentially different from this case, and from Lewis v. Lyman, as seems to have been the opinion of the Court in the case cited by the defendant, Garland v. Hilborn, 23 Maine, 446.

As agreed by the parties, the action must stand for trial.

Tenney, C. J., and Eice, Appleton, Cutting, and Goodenow, J. J., concurred.  