
    Hare v. Follet, Sheriff.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    October 3, 1891.)
    Chattel Mortgages—Recording—Renting Land on Shares.
    An agreement for the cultivation of land upon shares provided that the title to all property raised or produced should be and remain in the owner of the land until the fulfillment of the contract. Held, that such agreement, not having been filed in the manner prescribed by statute for filing chattel mortgages, was invalid as against an execution levied upon the undivided interest of the tenant in the crops under a judgment against him.
    Appeal from county court.
    Action by William W. Hare against John K. Follet, sheriff of Tompkins county, for the conversion of personal property. Plaintiff appeals from a judgment of the county court reversing a judgment of a justice in favor of defendant, and an order denying a motion for a new trial.
    Affirmed.
    Plaintiff, the owner of a farm, let the same upon shares by a contract of letting containing a stipulation “that the title of all property raised or produced is to be and remain in him until the fulfillment of this contract.” The contract was not filed in the clerk’s office of the town where the tenant resided. Defendant, under an execution against the lessee, levied upon and sold the undivided interest of the lessee in a portion of the farm produce.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Halliday & Finch, ( William A. Finch, of counsel,) for appellant.
    The contract is a special agreement for working the parcel of land in question,—not a technical lease, nor the ordinary contract for letting land “upon shares.” A contract of this nature, requiring the payment to the owner of one-half of all wheat, etc., in the bushel, was held to be a lease of the land, rent to be paid in kind, and the landlord had no interest until the crop was measured and delivered. Stewart v. Doughty, 9 Johns. 108. In a subsequent case it was held, distinguishing the latter case, that there was no technical lease, but that the parties were tenants in common of the crop, and no action for rent would lie. Caswell v. Districh, 15 Wend. 379, and cases cited. See, also, Putnam v. Wise, 1 Hill, 234; Foote v. Colvin, 3 Johns. 216. The contract in each individual case must be construed in detail to determine the interests of the parties. See Tied. Real Prop. § 201. A contract for working land on shares,‘containing an undertaking to “lease and to farm let” the land in question, should be construed as an original contract, and might either constitute a lease of land with rent to be paid in specie, or an employment of the occupier to work the land and receive his pay in specie, or an agreement for working on shares, which would make the parties tenants in common of the crop as soon as planted. Taylor v. Bradley, 39 N. Y. 129, approved in Strain v. Gardner, 61 Wis. 174, 21 N. W. Rep. 35. A late (1888) case holds that agreements of this kind do not constitute the relation of landlord and tenant. Reynolds v. Reynolds, 48 Hun, 142. The form of the agreement is not controlling in determining whether the relation of landlord and tenant has been created. Id. The legality of the provision contained in the contract, that the cropper should have one-half of the crops when he should fully have performed all the stipulations of the contract, is fully sustained by Andrew v. Newcomb, 32 N. Y. 417. A covenant of this character, in a technical lease, is an absolute grant of the property to the lessor, and gives the lessor the immediate possession, not only as against the lessee, but as against all claiming through or under him. Van Hoozer v. Cory, 34 Barb. 11. When a farm was let out to one to work on shares, one-half the value of the proceeds to be paid by the lessor to the lessee, they were held tenants in common of the crop. Tanner v. Hills, 44 Barb. 428. But on appeal (48 N. Y. 662) it was held that the lessor had exclusive title thereto. And see, as to the rights of the parties where land is worked on shares, Reynolds v. Reynolds, 48 Hun, 147; Armstrong v. Bicknell, 2 Lans. 216; Putnam v. Wise, 1 Hill, 235; Decker v. Decker, 17 Hun, 13; Taylor v. Bradley, 39 N. Y. 139. The clause of the contract retaining the title to the products in plaintiff does not create a pledge of the goods. The contract puts the title in plaintiff, leaving in the cropper only the bare physical possession which a servant may have of his master’s goods. There was no conditional sale. Laws 1884, c. 315, providing that contracts for the conditional sale of goods and chattels, accompanied by.actual change of possession, shall be void as against subsequent purchasers and mortgagees in good faith, unless filed in the office of the town-clerk, has no application. In any event, no protection is provided for in favor of judgment creditors, or a sheriff levying on a judgment. The clause in question is not in the nature of a chattel mortgage. It is conceded the contract has not been filed. But, if it be held a chattel mortgage, the legal possession was in plaintiff, and filing was unnecessary. The rights of the cropper were inchoate. His interest, if any, was a debt from the plaintiff. It was not subject to levy, and the proper remedy of the judgment debtor was by supplementary proceedings and a receiver. There are no facts warranting a conclusion that the contract contains a chattel mortgage. Betsinger v. Schuyler, 46 Hun, 349, is not an authority applying to this case. In McCaffrey v. Woodin, 65 N. Y. 459, the lease gave only a lien, as security for rent, on property to be placed upon the premises, not alluding to produce. In Johnson v. Crofoot, 53 Barb. 574, the court laid stress upon the fact that the lease was absolute, and that the lessee therefore became the owner of the property as fast as it came.into existence. In Thomas v. Bacon, 34 Hun, 88, the lien was stipulated for with a promise to give a chattel mortgage on demand. And see the dissenting opinion in Betsinger v. Schuyler, supra.
    
    
      O. U, Kellog, for respondent.
    The provision in the lease that “the title of all property raised or produced is to be and remain in the lessor until the fulfillment of this contract” is in the nature of a chattel mortgage, or a provision to insure the faithful performance of a contract. The contract should have been filed in the clerk’s -office of the town where the tenant resided, to be valid against his creditors. The case is squarely within Betsinger v. Schuyler, 46 Hun, 349, holding a. similar provision in a lease to be a chattel mortgage. And see, also, Smith v. Taber, Id. 313; Thomas v. Bacon, 34 Hun, 88. The lease recited that the farm was let for one year, and that possession was to remain in the lessor only to the fulfillment of the contract. Plaintiff sought to retain possession of the farm, as well as title to the property, as security for the performance of the contract; but as the retention of possession was only until the contract was fulfilled, and as he retained it for no other purpose than for security, the necessity of filing the contract was not thereby avoided.
    
      
       Leave to appeal to court of appeals denied, 17 N. Y. Supp. 598.
    
   No opinion. Judgment and order affirmed, with costs.  