
    Albert O. Briggs, App’lt, v. Harvey Austin, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    I. Landlord and tenant—Lease oe earm—Title to hat.
    In the absence of an agreement in a lease of a farm to the effect that the title to the hay raised thereon vests in the landlord as security for the rent, or some other purpose, the law vests it in the lessee, and an agreement by the latter to maintain cows is an independent stipulation, which the sale or mortgaging of the hay does not disable him from performing, however unlikely performance might be after selling the hay, in view of the lessee’s insolvency.
    2. Same—Creditor’s action.
    Such a landlord is not in a position to assail the validity of the mortgage as a creditor of the mortgagor.
    Appeal from, judgment of the supreme court, general term, fourth department, affirming judgment in favor of defendant,
    
      R. M. Townsend, for app’lt; Burr Mattice, for resp’t.
    
      
       Affirming 36 St. Rep., 1019.
    
   Per Curiam.

The complaint was dismissed upon the opening of counsel for the plaintiff, wherein the plaintiff confined his claim for relief to a demand for an injunction restraining the defendant from taking possession of the hay grown on the premises, under a chattel mortgage executed to him by the lessee of the farm. The plaintiff alleged in his complaint that by the lease the title to the hay grown on the farm was to be in the plaintiff until the rent should be paid, and further, that the defendant’s mortgage was fraudulently executed by collusion between the tenant and the defendant mortgagee, to deprive the plaintiff of his title to the hay. There are two insuperable obstacles to the plaintiff’s recovery. The lease does not vest the title to the hay produced on the farm in the plaintiff, as security for the rent, or for any other purpose, and the law, in the absence of an agreement to that effect, vests it in the lessee. The agreement of the latter to maintain the cows was an independent stipulation which he was bound to perform, and the sale of the hay did not disable him from performing, however unlikely performance might be after selling the hay, in view of the lessee’s insolvency. But a sale of the hay by the tenant was not in violation of any contract with, or of any legal right of the lessor.

Second: the plaintiff is not in a position to assail the validity of the mortgage as a creditor of the mortgagor. He at most has a debt against the mortgagor for unpaid rent or any violation of the terms of the lease, which claim has not gone into judgment, and it is well settled that a general creditor having no judgment cannot maintain an action to set aside a conveyance by his debtor in fraud of the rights of creditors. Sullivan v. Miller et al., 106 N. Y., 635 ; 11 St. Rep., 312.

The judgment should be affirmed, with costs.

All concur.  