
    George H. Fleetham, Resp’t, v. George C. Reddick, App’lt.
    
      (Supreme Oourl, General Term, Third Department,
    
    
      Filed December 4, 1894.)
    
    -Chattel mortgage—-Property not in existence.
    Mortgage on crops before they are planted, to secure a debt other than the rent of the land on which they are to be grown, confers upon the mortgagee only a license to seize such crops and, until such seizure, he cannot maintain an action for conversion in justice’s court.
    Appeal from a judgment in favor of plaintiff.
    
      Joseph George, for app’lt; G. W Hurlbut, for resp’t.
   Putnam, J.

This is an appeal from the judgment of the county court of St. Lawrence county.' On the 27th day of February, 1893, defendant gave plaintiff a chattel mortgage on all grain raised on the farm that he worked for said Fleetham in the year 1893. When the mortgage was executed the grain was not in -existence, nor in the ground. After the grain was raised on the farm, it was ‘sold by the defendant, and subsequently demanded by plaintiff. An action was brought in justice’s court for the ■conversion of the oats raised on said farm, and judgment was rendered in said court against the defendant for $>113.10. The debt secured by the mortgage was not for the rent of the farm.

To maintain the action, plaintiff was bound to show that he was the owner of the grain in question. If he had title to such property at the time the defendant sold it, such title was derived from the chattel mortgage executed February 27, 1893, long before the grain was sown. It has been deemed established that growing crops may be sold or mortgaged, but, under the authorities, it is doubtful whether the owner or lessee of land can give a mortgage on crops not yet planted, which shall have the effect of conveying the legal title thereto. That the lessee could convey such crops to his landlord to secure the rent has been decided; under such a contract, it being deemed that the title to the future-crops, when grown, vested at once in the landlord, and not in the lessee. Van Hoozer v. Corey, 34 Barb. 9; Conderman v. Smith, 41 id. 404; Smith v. Taber, 46 Hun, 313; 14 St. Rep. 644; Rochester Distilling Co. v. Rasey, 142 N. Y. 570-576; 60 St. Rep. 284. Ordinarily, however, legal title to property not in existence, actually or potentially, cannot be transferred by way. of a mortgage. Deeley v. Dwight, 132 N. Y. 59; 43 St. Rep. 409; Rochester Distilling Co. v. Rasey, 142 N. Y. 570; 60 St. Rep. 284. In the authority last above cited, it was held, in the case of a mortgage-given by the lessee of land on crops not planted, that crops which are the annual product of labor and of the cultivation of the earth have no actual or potential existence before planting. It would seem to be indicated by the authority above cited that the mortgage under which the plaintiff claimed being given upon crops not having any actual potential existence at the time the instrument was executed, and not made to secure rent, no legal title to said crops was ever in plaintiff, and hence that the action should not have been sustained in a justice's court. We think the proper doctrine, in regard to such a mortgage of crops to be planted as that under which plaintiff claimed in this action, is well stated in McCaffrey v. Woodin, 65 N. Y. 459-464: “At law, a mortgage upon property not yet acquired is, according to the authorities, only a license until a new act intervenes.” In that case the mortgagee, pursuant to the license contained in the mortgage, had seized the property; and it was held that such seizure was lawful, and that, after seizure, title to the property vested in the mortgagee. In Williams v Briggs, 16 Alb. Law J. 387,—which was, like this, an action of trover by the mortgagee against the voluntary assignee of the mortgagor,—it was held that a mortgage of personal property to be subsequently acquired conveys no title to such property, when acquired, which is valid against the mortgagor or his voluntary assignee, unless, after acquisition by the-mortgagor, possession of such property is given to the mortgagee or taken by him under the mortgage.

We conclude that plaintiff, under his chattel mortgage, took no legal title to the crops thereafter planted or raised by the defendant. His mortgage conferred on him a license to take such crops, and, had he seized them before the sale by the defendant, the title to such property would have then vested in him; but as, prior to any such seizure, the defendant sold the property, plaintiff never had such a legal title thereto as enabled him to maintain an action of trover in justice’s court. See Page v. Larrowe, 22 N. Y. Supp. 1099; Cressey v. Sabre, 17 Hun, 120; Rochester Distilling Co. v. Rasey, 65 id. 512; 48 St. Rep. 301; Milliman v. Neher, 20 Barb. 37.

We do not think it necessary to discuss the question whether the mortgage, by its terms, conveyed grain to be planted and raised after the date of its execution.

The judgment should be reversed, with costs.

All concur.  