
    William Daffus, Appl’t, v. Eli F. Bangs et al., Respt’s.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Personal property—Nursery stock is.
    Parties rented lands of the defendants, upon which they planted nursery stock, wliich they subsequently, during the continuance of their term, mortgaged to the plaintiff. This mortgage was duly filed. Held, that the nursery stock was personal property and not real estate.
    2. Same—What regarded as severance from real property.
    
      Held, that the chattel mortgage given by the tenants to the plaintiff worked a severance from the real estate, and after default the absolute title vested in the plaintiff, who became entitled to enter upon the land and remove his personal property, with as little injury to the ■ defendants as possible.
    3. Same—Rights of party under chattel mortgage.
    
      Held, that a judgment and warrant of dispossession obtained against the tenants could not deprive the plaintiff of his right, nor could any voluntary act on their part.
    Appeal from a judgment non-suiting the plaintiff.
    
      W. S. McGregor, for appl’t; M. M. Waters, for resp’ts.
   Boardman, J.

The nursery stock was personal property and not real estate. It consisted of trees, plants and shrubs, planted by tenants for the purposes of trade and to be removed and sold when ready for the market. King v. Wilcomb, 7 Barb., 263; Green v. Armstrong, 1 Denio, 550; Jencks v. Smith, id., 580; S. C., 1 Coms., 90; Hamilton v. Austin, 36 Hun, 138, 142. The tenants held by virtue of a lease from defendants under seal for á term of five years from September 16,. 18Y6, with a right to an extension of two or three years, on lands planted to currants and raspberries. The tenant owned, as against the landlord, raspberries, etc., planted under such lease. November 25, 18Y8, the tenants, then in possession of and so owning said nursery stock, mortgaged the same to the plaintiff to secure him against his endorsement of their notes for $600, due in about two months. The mortgage was duly filed. In February, 18Y9, proceedings were begun by defendant to dispossess the tenants for non-payment of rent due. After a contest, possession was awarded the defendants and a warrant issued March 5, 18Y9, but never served upon the tenants. While the tenants were still in possession, and about March 14, 18Y9, the plaintiff claimed the property under his chattel mortgage of defendant Eli T., who promised plaintiff that he might take up the property in the spring, when the frost was out of the ground, so it could be done. Plaintiff, about the 1st of April, 18Y9, foreclosed his mortgage and bid in the property. When he went for the property, the latter part of April, the defendant refused to give it up. The respondents claim that the lease operated as a chattel mortgage in favor of defendants for any unpaid rents, so it was never filed nor had plaintiff any notice of it. He was a mortgagee in good faith.

The chattel mortgage given by the tenants to plaintiff worked a severance from the real estate, and after default the absolute title became vested in plaintiff, who became entitled to enter upon the land and remove his personal property, there being, with as little injury to the defendants as possible. King v. Wilcomb and other cases (supra); Wintermute v. Light, 46 Barb., 278; Bank of Lansingburg v. Crary, 1 id., 543.

The defendants had acquired no title to the property as against the plaintiff’s superior title. It may have been otherwise in respect to the tenants, whose rights of removal of the property may not have survived the existence of their lease. Whether such lease expired when the warrant for dispossession was issued may well be doubted. Powers v. Carpenter (15 N. Y. Wk. Dig., 155); further illustrated in Newall v. Wigham, 102 N. Y., 28 ; 1 N. Y. St. R., 666. But we think in no event ought such judgment and warrant to destroy the rights and title which the plaintiff in good faith had acquired in the mortgaged property. He was not a party to that proceeding and was not bound by it. How clearly ought he to have a reasonable time after such removal to enter up and take away the stock. Moore v. Wood, 12 Abb. Pr., 393. Nor could the tenants by their voluntary act of surrender of possession deprive plaintiff as mortgagee of his rights under his mortgage to this property. He could still enter and remove the mortgaged property. Ombony v. Jones, 19 N. Y., 234; London Loan Co. v. Drake, 6 Com. Bench R (N. S.), 796, 809.

We conclude that the nonsuit ought not to have been granted upon the facts shown.

The judgment must be reversed and a new trial granted, with costs to abide the event.  