
    [No. 4333.]
    LOUIS ARQUES et al v. ANDREW WASSON.
    Mobtgage on Chops.—The lessee of land, in possession of the same, may, before he has planted, execute a valid mortgage on the crop to be raised by him the coming cropping season.
    Appeal from the District Court, Twentieth Judicial District, County of Monterey.
    The facts are stated in the opinion.
    
      
      T. B. Bishop, for the Appellant.
    The question is not,' I respectfully submit, at all affected by the statutes of this state upon the subject of “ growing crops.” Crops not growing, but to be planted hereafter, and to begin to grow hereafter, are not within the category of “growing crops,” under any possible interpretation of those words. The. general rule of law is well settled and undisputed. The best and most comprehensive statement of it, which I have seen, is that of Chief-Justice Shaw, in Bernard v. Eaton, 2 Cushing, 303, in the following words: “ A mortgage is an executed contract—a present transfer of title, though conditional and defeasible; it can, therefore, only bind and affect property existing and capable of being identified at the time it is made; and whatever may be the agreement of the parties, it cannot bind property to be afterward acquired by the mortgagor.”
    Although this is an action at law, I may remark in passing that the rule is the same, both at law and in equity. {Moody v. Wright, 13 Met. 17; Chynoweth v. Tenney, 10 Wis. 403; Congreve v. Evetts, 10 Ex. R. 307, where Parke, B. says that such conveyance “ gave no legal title, nor even equitable title, to any specific goods.” Otis v. Sill, VIII Barb, 116. See also Cudworth v. Scott, 41 N. H. 461, and Lane v. Thurston, 1 Man., Gran. & Scott, 379.)
    The crops to be planted, which it is claimed were mortgaged, had no actual or potential existence at the time the mortgage was made. (Sheppard’s Touchstone, 241; Hutchinson v. Ford, 9 Bush Ky. 318; Cudworth v. Scott, 41 N. H. 461; Congreve v. Evetts, 10 Ex. Ch. R. 307; Comstock v. Scales, 7 Wis. 159; Gale v. Burnell, 7 Adol. & Ellis, N. S. 848; Otis v. Sill, 8 Barb, 116; Jones v. Richardson, 10 Met. 481; Moody v. Wright, 13 Met. 17; Chynoweth v. Tenney, 10 Wis. 397; Chapin v. Crum, 40 Me. 561.)
    
      Win. H. Webb and James A. Wall, for the Respondent.
    A mortgage can be made of a thing not “ in esse ” at the date of the making of mortgage, and the lien will attach and be a charge upon the particular property as soon as it comes into existence, as against the mortgagor and all persons assorting a claim thereunto under him either voluntarily or in bankruptcy. (Bibend v. L. & L. F. & L. Ins. Co., 30 Cal. p. 86 and fol.; McComber v. Parker, 14 Pick. p. 497; Story on Bailments, Sec. 294; 2d Story’s Equity, Sec. 1055; Seymour v. C. and N. Falls R. R. Co., 25 Barb. 284.)
    
      Smith v. Beattie, 31 N. Y. 542, is a case of a mortgage of a thing not “in, esse,” carpets to be manufactured. (Stamps v. Oilman, 43 Miss. 456; Putnam v. Cushing, 10 Gray Mass. 334; Van Hoozer v. Cory, 34 Barb. Nv Y. p. 9 to 15 inclusive.
   By the Court, Crockett, J.:

The action is replevin to recover from the sheriff certain grain and flax seed seized and sold by him under an attachment and execution against one Hansen. The findings show that Hansen leased from the plaintiffs a parcel of land, and from one Heed an adjoining parcel, of both of which ho was in possession under the leases; that to secure the rent to be paid to the jflaintiffs, and also a store account which he owed them, he duly executed and delivered to them a mortgage (which was duly recorded), upon all the crops of every kind to be produced on said lands during the next ensuing cropping season; that at the date of the mortgage Hansen was in possession of the land, but had not then plowed it or sowed the seed, but proceeded to do so very soon thereafter and produced the crop which is in controversy; that when the crop had matured and had been partially harvested, it was seized by the defendant as sheriff, under an attachment at the suit of another creditor of Hansen, and was subsequently sold by the defendant under an execution issued upon the judgment in said action. The plaintiff recovered and the defendant appeals.

The point chiefly relied upon for a reversal is, that at the date of the mortgage the crop had not even a potential existence, the ground not having been plowed or the seed sown; and it is claimed that there can be no valid mortgage of a thing not in esse. It is conceded by counsel that if the thing has a potential existence, as, for example, wool to be grown from sheep then belonging to the mortgagor, or butter to be thereafter produced from his cows, or a crop arising from seed already sown, the mortgage would be valid. The general rule undoubtedly is that a person cannot convey a thing not in esse, or in which he has no present interest. But it is quite as rvell settled, that if the thing has a potential existence it may be mortgaged or hypothecated. “If one, being a person, give to another all the wool he shall have for tithes the next year, this is a good grant, although none may arise, for the tithes are potentially in the person. * * * So one may grant all the wool of his sheep for seven years; but not of the sheep which he shall thereafter purchase.” (Van Hoozer v. Corey, 34 Barb. 12, and authorities there cited). “Land is the mother and root of all fruits. Wherefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant.” (Grantham v. Hawley, Hob. R. 132.) In Van Boozer v. Corey, supra, the court holds that “the same principle is adjudged applicable to the annual crops, the fruit of the annual labor of the lessee, as if a lessor covenants that it shall be lawful for the lessee, at the expiration of the lease, to carry away the corn growing on the premises, although by possibility there may be no corn growing at the expiration of the lease, yet the grant is good, for the grantor had such a power in him, and the property shall pass as soon as the corn is extant.” So there may be a valid grant of the grain that a field is expected to grow. (1 Parsons on Cont. 523; McCarthy v. Blevins, 5 Yerg. 195.) In Van Hoozer v. Corey, supra, the grant was of the cheese expected to be made from the cows of the grantor, and “the products expected to be raised upon the premises then demised to the grantor”; and this was held to be a valid grant. In that case the question involved here ivas carefully considered by the court upon a full examination of the authorities, and we are satisfied with the conclusion to which it arrived. But the same question arose in the later case of Conderman v. Smith (41 Barb. 404), in which the ruling in Van Boozer v. Corey was approved; and Johnson, J., in delivering the opinion of the court, said: “ That case (Van Hoozer v. Corey) like this, was an action by the lessor and purchaser, against a creditor of the lessee, who had taken and sold the products of the farm and dairy upon execution; and the court held that it did not fall within the rule which prohibits the selling or mortgaging of property not in existence, or not owned by the vendor or mortgagor. It was the product of property which the vendor owned at the time, and was, as it is expressed in the books, potentially his, and, therefore, the subject of sale.” On the rule established in these cases, the crop mortgaged to the plaintiffs had a potential existence, and the mortgage was valid.

Judgment and order affirmed.

Mr. Chief Justice Wallace and Mr. Justice McEjnstry dissented.  