
    Bleakley v. Sullivan et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    1. Landlord and Tenant—Lien by Contract—Validity of Agreement.
    A lease of a brick-yard provided that at all times, on and after the first quarter’s rent should become due, the lessees should keep in the yard brick enough to pay one quarter’s rent. The lessees mortgaged all the brick on the yard, rent being then due. Held, that the agreement was valid, and that no title to the brick passed by the mortgage, as against the lessor’s demand for rent.
    2. Same—Confusion of Goods—Rights of Landlord.
    In such case, plaintiff’s rights were not affected by the fact that the amount of reserved brick was mixed with other brick in the yard, the landlord having a right, in case of confusion of goods, to take out of the same an amount equal to his demand.
    Appeal from special term, Westchester county.
    Action by Rosalie A. Bleakley against Timothy J. Sullivan and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Argued before Barnard, P. J., and Pratt,
    
      Cyrus Wm. Horton, for appellants. David W. Travis, for respondent.
   Barnard, P. J.

The plaintiff executed a lease to McGuire & Griswold of a brick-yard at Verplank’s Point, in Westchester county. The lessees took in another party, and formed a corporation, under the name of McGuire & Co., for the manufacture and sale of brick. The lease granted the right to enter upon the plaintiff’s property, and take the material for the manufacture of the brick. The lease provided that, at all times on and after the first quarter’s rent became due, the lessees should have and keep upon the yard good hard brick enough to pay one quarter’s rent. In case of default on payment of rent, the lessor was authorized to take the brick, and sell the same, and discharge the rent due, with expense of sale. There is rent due, and the lessees have mortgaged to Sullivan, one of defendants, all the brick in the yard. The action is brought to compel the execution of the covenants in the lease so far as respects brick sufficient to pay the undue rent. The lease was not a chattel mortgage. It did not convey property with a defeasance, and it operated on no specific property. The landlord never parted with the title, and her claim rests upon her personal right thereto. She owned the yard and the materials with which brick was made. She gave the right to the brick-makers to take her property, and make it into brick, but no sale could be made below an amount sufficient to pay her rent. The lessees never had a right to sell, and could not sell, to Sullivan, without observing this covenant. A mortgagor can give no title greater than he has. The lessees were always in possession of the brick reserved. This possession followed her title to 'the land, and to the product of the land, so far as such product was reserved for her own safety, until the covenant of payment was fulfilled. It was the fault of the lessees if this reserved' amount of brick was mixed with other brick, and when a confusion of goods is thus made the lessees get no benefit. The landlord can take out of the confused goods an amount equal to his demand. The agreement was good in law, was beneficial to the tenants, and they could not evade it in the manner shown by the case. The judgment should be affirmed, with costs.  