
    Moses Hawkins, Resp’t, v. John G. Beakes et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    Mobtgages—Chattel—What subject to.
    Lessee does not have mortgagable interest in crops raised on leased land, where the title to them remains in the lessor until payment of certain claims against the lessee, before they are paid.
    Appeal from a judgment in favor of plaintiff.
    
      John L. Wiggins, for app’lts ; Bacon & Merritt, for resp’t.
   Dykman, J.

—This is an action for the recovery of 60 tons of hay. The cause was tried before a judge without a jury, and a judgment was rendered in favor of the plaintiff against the defendants. The plaintiff was the owner of a farm, which for several years had been in the possession o£ John McCarthy under a lease from the owner. In January, 1893, the plaintiff took possession of all the personal property on the farm belonging to McCarthy under chattel mortgages and claims which he held against him foils,629. On the 17th day of January, 1893, McCarthy sold and transferred his equity in all the property to the plaintiff. Subsequently, on the 21st day of January, 1893, by an agreement in writing, the plaintiff agreed to give McCarthy an option to repurchase the said property in two years. All the hay cut and the crops raised upon the said farm were, by the said agreement, to be and remain the property of the plaintiff. The hay, for the recovery of which this action was brought, was raised upon the farm in the summer of 1893. In November, 1892, John G. Beakes recovered, a judgment against McCarthy, and, upon an execution issued thereon against the property of McCarthy, the sheriff levied upon the hay in question. The hay was taken into the possession of the sheriff, and advertised for sale under the execution. Thereupon, this action was commenced, the hay was replevied by. the sheriff, and delivered to the plaintiff.

It is the theory of the defendants, upon which the defense to the action is based, that the agreement of January '21, 1893, is a chattel mortgage upon the growing crops, and therefore invalid and ineffectual, as between third parties, because it was not filed as a chattel mortgage. -That position, however, is faulty, because the title to the property was already in the plaintiff when that agreement was executed, and was reserved by the plaintiff by the terms of the instrument. Such title could only be divested by the payment of the amount stipulated to be paid by the instrument. The agreement amounted to a stipulation that the products of the soil of the plaintiff’s own land, when they came into existence, should be and remain his property until the fulfillment of the agreement by McCarthy, and that he never completely performed. There was money due from him to the plaintiff when this action was commenced. The following cases are authorities in favor of the plaintiff, and fully justify the judgment in his favor : Andrew v. Newcomb, 32 N. Y. 417 ; Van Hoozer v. Corey, 34 Barb. 9 ; Schroeppel v. Dingman, 17 Wkly. Dig. 257; Booher v. Stewart, 75 Hun, 215; 58 St. Rep. 666.

The judgment should be affirmed, with costs.  