
    Rochester Distilling Co. v. Razy.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    1. Chattel Mortgages—Crops tobe Planted—Rights of Subsequent Creditors.
    A chattel mortgage on potatoes to be planted after its execution is invalid as to subsequent purchasers and attaching creditors of the mortgagor, since annual crops raised from planted seed have not even a potential existence before the seed is put in the ground; and a sale under execution levied against the growing crop gives the purchaser a valid title as against the mortgagee or a subsequent purchaser on foreclosure.
    2. Same—Crop Planted Before and After Execution of Mortgage.
    The intermingling by the purchaser on foreclosure of the crop raised from seed planted both before and after the execution of the mortgage gives him no right to retain the entire crop, where the evidence shows the quantity obtained from each planting; and the purchaser at the execution sale is entitled to the portion obtained from seed planted after the execution and delivery of the mortgage.
    Exceptions from circuit court, Monroe county.
    Action by the Rochester Distilling Company against Asa Razy, to recover certain personal property, with damages for the withholding thereof. The court directed a verdict for plaintiff as to a portion of the property, and for defendant as to another portion. Plaintiff duly excepted, and the exceptions were ordered to be heard at general term in the first instance. Exceptions sustained.
    Argued before Dwight, P. J., and Mac'omber and Lewis, JJ.
    
      George D. Reed, for plaintiff. De Merville Page, for defendant
   Lewis, J.

The plaintiff obtained a judgment against one Philip P. Lovell In the supreme court, county of Monroe, on the 13th day of February, 1890, for $147.44. A transcript of the judgment was filed, and the judgment docketed in Steuben county the following day. Lovell was the lessee of a farm in the county of Steuben in the year 1890. On the 30th day of April, 1890, he gave a chattel mortgage to Esak Page, to secure the payment of money borrowed of Mr. Page, and also to secure Mr. Page as his accommodation indorser. The mortgage was given upon the chattels and property described therein as follows: “The grass now growing on the premises leased of Drake and Searle, assignee,” etc., (being the farm mentioned;) “also, all the corn, potatoes, oats, and beans which are now sown or planted, or which are hereafter sown or planted during the next year, on the above described premises, and two new boats made by Bennett.” Lovell planted about four acres of the land to potatoes, and he also planted some beans. ’ All of the planting was done after the execution and delivery of the mortgage, except about one acre of potatoes, which were planted before the mortgage was given. An execution was issued upon the plaintiff’s judgment against Lovell, and the sheriff, on the 5th day of July, 1890, made a levy upon the growing crops of potatoes and beans aforesaid. He advertised and sold them on the 16th day of August, 1890, to the plaintiff. Mr. Page, hearing of the levy thus made upon the potatoes and beans by the plaintiff,"advertised and sold them under his chattel mortgage on the 15th day of J uly, 1890, to the defendant. The defendant took possession bf them, and when they ripened he harvested them, and refused to deliver them to the plaintiff upon demand made, and the plaintiff brought an action to recover possession of the potatoes and beans, with damages for the withholding thereof. At the close of the evidence both parties asked for the direction of a verdict in their favor, respectively. The court directed a verdict for the plaintiff for the beans, and for the defendant for the potatoes, to which decision the plaintiff duly excepted, and the exceptions were ordered to be heard at general term in the first instance. By consent of parties, the value of the beans was fixed at 6 cents, and the value of the potatoes at $118.80, with $79.20 damages for their detention.'

The sale under the execution gave to the plaintiff title to the potatoes and beans, unless the contention of the defendant can be sustained, that he got title to them by virtue of the sale under the chattel mortgage. The mortgage was concededly given for a good and valuable consideration, and was duly filed. It is contended by the plaintiff that a verdict should have been directed in its favor as to the potatoes, as well as the beans, but that, in any event, plaintiff was entitled to recover that part of the potatoes planted after the execution and filing of the mortgage. As against subsequent purchasers and attaching creditors, a chattel mortgage cannot be given for property not in existence, so as to vest the title, when it comes into being, in the mortgagee. Cressey v. Sabre, 17 Hun, 120. There are exceptions to this doctrine. It is held that, as between landlord and tenant, because of the fact that the landlord owns the soil, the tenant may, even as against creditors and purchasers, pledge crops to be raised as security for the payment of the rent, thereby giving the landlord an equitable lien upon the after-planted crops. Andrew v. Newcomb, 32 N. Y. 417; Butt v. Ellet, 19 Wall. 544. Crops not yet grown, but which grow spontaneously, the roots thereof being in the soil when the mortgage is given, aré held to have such a potential existence as that they may tie mortgaged. Annual crops raised from planted seed cannot be said to have even a potential existence before the seed is put in the ground. The plaintiff and Mr. Page were both creditors of Lovell. Plaintiff secured the first lien by the levy made on the 6th of July, and no reason is apparent why the defendant has any equity superior to the plaintiff. . Page occupied the relation simply of a creditor of Lovell. He had no interest in the farm. He took his mortgage to secure the payment of money loaned tq Lovell, and to secure him as Lovell’s indorser. There was no delivery made of the property prior to the levy of the plaintiff.

We think the plaintiff had'a prior lien upon the crops planted after the delivery of the mortgage. An embarrassment arises because of the mingling of the potatoes which were planted before the giving of the mortgage and those that were planted after. The evidence tends to show about the quantity that was obtained from each planting. The plaintiff was not responsible for-the intermingling; that was done by the defendant. There should have been a direction of a verdict for the plaintiff for the potatoes that were obtained from those planted after the execution and delivery of the mortgage, as well as for the beans.,' A new trial should be granted, costs to abide the event of the action. All concur.  