
    Johnson vs. Crofoot, Sheriff, &c.
    A lease of a daily farm, with cows and other property, for a term of years, at a specified rent payable yearly, contained this clause: “ The party of the first part [the lessors] are to have full title, with the privilege of taking possession at any and all times, of any and all products of the farm, in payment of the balance due on the rent,” &c. Held that this clause was a mere security for money, and was necessarily in the nature of a chattel mortgage; and that the only title the lessors had to the hay raised on the farm being that of chattel mortgagees, that was the title which passed to an assignee, by their assignment to him of the counterpart of the lease, as between such assignee and the tenant.
    
      Held, also, that the lease never having been filed as a chattel mortgage, as required by the statute to make it valid as against the creditors of the lessee, and the tenant being in possession of the farm, when the hay was levied upon and sold by his creditors, on execution, no action could be maintained by the assignee of the lease against the sheriff, to recover the value thereof, in the absence of any default in the payment of rent.
    MOTION by the plaintiff for a new trial, upon a verdict for the defendant under the direction of the judge who tried the cause.
    On the 5th day of November, 1866, Miller & Humble leased to one Barton E. Tifft, a dairy farm in the town of Pinckney, Lewis county, with forty cows and some other personal property, for the term of two years from December 1, 1866, at the yearly rent of $750. The lease provided that the milk of the dairy should be taken to a neighboring cheese factory to be manufactured into cheese, and when sold five-eighths of the proceeds to be paid to the landlord upon the rent, and at the last sale of cheese the tenant was to pay the balance of rent, if any remained, due. The lease also contained the following clause:
    “ The party of the first part are to have full title, with the privilege of taking possession, at any and all times, of any and all products of the farm in payment of the balance due on the rent at the last factory sale, at which such milk is drawn, and left unpaid by the party of the second part.” The lease also provided that the tenant should feed out the hay and straw in a careful and farmerlike manner, to cut and get in good order all the hay,” and in case of deficiency of hay or straw on the farm to feed the stock, then the landlord was to furnish .such deficiency.
    The landlord also reserved in the lease the right to reenter and take possession of the farm at any time between the first day of December and the first day of March, in each year, in case he sold the farm during the term of the lease. Tifft, the tenant, went into the possession of the farm and personal property shortly after the execution of the lease. On the 8th day of July, 1867, Miller & Rumble, the lessors, sold the farm and assigned their interest in the lease and personal property to the plaintiff in this action. The plaintiff never had possession of the farm or personal property, but Tifft continued in possession as tenant under the lease from Miller & Rumble. On the 9th of August, 1867, Ballard & Hanchett, of Watertown, recovered a judgment in the Supreme Court against Tifft, the tenant, for $630, upon which an execution was issued to the defendant as sheriff of Lewis county, August 10, 1867, by virtue of which he levied upon and sold about sixty tons of hay on the farm, raised thereon by Tifft, and being then in his actual possession, he being still'in possession of the farm.
    The plaintiff thereupon brought this action against the sheriff for a wrongful taking and conversion of the hay, claiming title to it under the clause in the lease, and also claiming that the title to the hay never passed to or vested in the tenant, but that the hay was to remain on the farm for the purpose of feeding the stock.
    The cause was tried at the Lewis circuit in October, 1867, before Justice Mullir and a jury, and the foregoing facts were proved, and it was conceded by the plaintiff that the lease had never been filed as a chattel mortgage.
    At the close of the evidence the judge directed a verdict for the defendant, with leave to the plaintiff to move to set it aside, and for a new trial, at the general term.
    
      
      A. J. Mereness, for the plaintiff.
    
      D. O'Brien, for the defendant.
   By the Court, Foster, J.

The plaintiff, as between him and Tifft, had only the interest in the hay in question of a chattel mortgagee; for such in fact was the clause in the lease from Miller & Bumble to Tifft, by which it was stipulated that Miller & Bumble were to have full title, with the privilege of taking possession at any and all times, of any and all products of the farm, in payment of the balance due on the rent at the last factory sale.”

The lease to Tifft of the premises was absolute, and with the exception of the proceeds of three-fifths of the milk to be sold to the cheese factory, he was the owner, and was entitled to the possession of it, and the clause above set forth was a mere security for money; and necessarily in the nature of a mortgage. But it is argued by the counsel for the plaintiff that it was not a mortgage, and that the title to such hay as should grow on the place did not pass to Tifft, because he stipulated in the lease that he would cut and get in in good order all the hay, and that he would feed out the hay and straw in a saving manner, and because it was further stipulated that he was “ to have the privilege of keeping a span of horses all the time, and a third horse during haying,” which, it is claimed, is inconsistent with the idea that the title to the hay was to be in him.

The answer to the argument is' perfectly manifest. By the terms of the lease, Miller & Bumble bound themselves to supply all such hay as was necessary to winter the stock after the hay and straw raised on the place was, exhausted; and therefore they were interested in limiting the amount of stock to be kept, and in providing that all the hay and straw should be saved and carefully used, as though the title to it was in them.

[Onondaga General Term,

October 6, 1868.

The covenant on the part of Tifft to save all the hay and straw, and to carefully feed it to the stock, and to keep but two horses except during haying time, was only an agreement binding on him at law, and if he chose to keep more horses, or to sell or improvidently use the hay, it did not authorize Miller & Bumble to interfere with it, either by taking possession of it, (for they were entitled to possession only as security for the unpaid rent,) or to restrain such use of it by injunction.

If so improperly used, Miller & Bumble had but two remedies. They could refuse to supply the deficiency thus caused, or sue at law upon the broken covenants.

As the only title that Miller & Bumble had to the hay was that of chattel mortgagees, that was the title they transferred to the plaintiff by the assignment to him of the counterpart of the lease. It was never filed as required by the statute, to make it valid as against the creditors of Tifft. Tifft was in the actual possession when the levy and sale took place, and therefore the plaintiff cannot recover. This question strikes at the foundation of the plaintiff’s claim. There is no claim that the lease had' ever been filed; and even if there were errors committed on the trial, a new trial would be useless, and I therefore see no necessity for examining the other questions raised in the case.

A new trial should be denied, and judgment entered upon the verdict, for the defendant.

Judgment accordingly.

Bacon, Morgan, MuUin and Foster, Justices.]  