Page images
PDF
EPUB

§ 30. Disposal of anticipated crops.-Crops, like other personal property, must exist before they can be made the subject of sale or mortgage; this existence may be actual or potential, and in defining a potential existence, such as will render possible a sale or mortgage, the authorities are apparently in conflict upon the matter of crops which have not yet been sowed. The standard authority in the older cases appears to be Sheppard's Touchstone, (p. 24) in which it is said that trees, grass, and corn growing and standing on the ground, fruit upon trees, and wool upon the sheep's back, may be mortgaged or sold. When the crop is growing, although not matured, it may be sold or mortgaged, but when its existence has not commenced it would appear that no sale or mortgage could be made of it.1

Such is not only the conclusion arrived at by the Court in Kentucky in a case lately decided, but the conclusion there arrived at seems to be generally accepted.2

Under the California Code, however, the converse of this proposition is decided to be law, two of the five justices dissenting, it being held that a crop not yet sowed, or for the sowing of which the ground had not been plowed, could be mortgaged.4

1 Shep. Touch. 241, Title Grant; Brownell v. Hawkins, 4 Barb. 491; Story on Bail. 287.

2 Hutchinson v. Ford, 9 Bush, Ky. 318. "A mortgage of a crop to be raised on a farm during a certain term passes no title if the crop was not sown when the mortgage was executed, and the mortgagee has no claim against the purchaser of the crop for its value." (3 Cent. L. J. 151, March 3d, 1876; Milman v. Neher, 20 Barb. 38; Brownell v. Hawkins, 4 Barb. 491; Jones v. Richardson, 10 Met. 481; Codman v. Freeman, 3 Cush. 306.)

$ Civil Code Cal. Sec. 2955.

Arques v. Waston, Sup. Court, Cal. July 24, 1876: a crop was mortgaged before the ground had been even plowed to sow the seed; a creditor attached, and the mortgagee replevied from the sheriff; the Court held the mortgage good, in the decision using the language following:

“The point chiefly relied upon for a reversal is, that at the date of the mortgage the crop had not even a potential existence, the ground not having been plowed or the seed sown; and it is claimed that there can be no valid mortgage of a thing not in esse. It is conceded by counsel that if the thing has a potential existence, as, for example, wool to be grown from sheep then belonging to the mortgagor, or butter to be thereafter produced from his cows, or a crop arising from seed already sown. the mortgage would be valid.

"The general rule undoubtedly is that a person cannot convey a thing not in esse, or in which he has no present interest. But it is quite as well settled that, if the thing has a potential existence, it may be mortgaged or hypothecated. ‘If one, being a person, give to another all the wool he shall have for tithes the next year, this is a good grant, although none may arise; for the tithes are poten

§ 31. Crops may be mortgaged, when?-If the means of producing property is visible, tangible, and in the hands of the mortgagor, or under his control, so that some result therefrom is reasonably certain, such anticipated property may be made the subject of a chattel mortgage, as the wool growing upon a flock of sheep; the butter or cheese to be made in a stated season, the cows from which it is to be made being the property of, or in the possession of, the mortgagor, and due provision having been made for dairying from them, and in this category may be classed growing

tially in the person. * So one may grant all the wool of his sheep for seven years; but not of the sheep which he shall thereafter purchase.' (Van Hoozer v. Cory, 34 Barb. 12, and authorities there cited.) 'Land is the mother and root of all fruits. Wherefore, he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant.' (Grantham v. Hawley, Hob. R. 132.) In Van Hoozer v. Cory, Supra, the Court holds that 'the same principle is adjudged applicable to the annual crops, the fruit of the annual labor of the lessee; as if a lessor covenants that it shall be lawful for the lessee, at the expiration of the lease, to carry away the corn growing on the premises, although by possibility there may be no corn growing at the expiration of the lease, yet the grant is good, for the grantor had such a power in him, and the property shall pass as soon as the corn is extant.' So there may be a valid grant of the grain that a field is expected to grow. (1 Parsons on Cont. 523 N. K.; McCarthy v. Blevins, 5 Yerg. 195.) In Van Hoozer v. Cory, Supra, the grant was of the cheese expected to be made from the cows of the grantor and the products expected to be raised upon the premises then demised to the grantor'; and this was held to be a valid grant. In that case, the question involved here was carefully considered by the Court upon a full examination of the authorities, and we are satisfied with the conclusion at which it arrived. But the same question arose in the later case of Conderman v. Smith, 41 Barb. 404, in which the ruling in Van Hoozer v. Cory was approved; and Johnson, J., in delivering the opinion of the Court, said: "That case, (Van Hoozer v. Cory) like this, was an action, by the lessor and purchaser, against a creditor of the lessee, who had taken and sold the products of the farm and dairy upon execution; and the Court held that it did not fall within the rule which prohibits the selling or mortgaging of property not in existence, or not owned by the vendor or mortgagor. It was the product of property which the vendor owned at the time, and was, as it is expressed in the books, potentially his, and, therefore, the subject of sale." On the rule established in these cases, the crop mortgaged to the plaintiffs had a potential existence, and the mortgage was valid.

1 Holroyd v. Marshall, 9 Jur. N. S. 213.

In Van Hoozer v. Cory, 34 Barb. 10, the case was an action for trespass, for taking and carrying away a quantity of cheese alleged to be the property of plaintiff. The defendant justified as a constable under judgment and execution against Smith; on the trial it was shown that plaintiff leased to Smith a dairy-farm, with the cows, fixtures, and dairy implements.

The lease, in addition to the usual covenants, contains the following clause: "And it is further agreed that the said $300 shall be paid, etc., and that all the produce and products of the farm, and cows that shall be raised and made each

be

crops which have an actual, tangible existence; they may mortgaged, and when matured, or severed from the soil, the lien will ripen into actual property.

§ 32. Notice of chattel mortgage.-Chattel mortgages, when properly executed and recorded in the county where the property is, operate as constructive notice, both in and out of the county, of the lien of the mortgagee; and although the property mortgaged may be in its nature movable, yet the lien may be asserted against subsequent purchasers in or out of the county, upon the theory that the record of the mortgage is constructive notice to those who buy. The policy of permitting the lien of the mortgagee to prevail where the property is removed out of the county where the lien is of record, has been much doubted, but as to that, the question is now too well settled to be disturbed. But it would be carrying the doctrine to an unreasonable extent to permit liens to be created by mortgage, either in or out of the county where the parties live, or the property is situated, upon property not in esse, and a purchaser should not be required, in an investigation of the title to a crop, to go back prior to the time when the property first had any existence, in order to be informed of the right of the party in possession to sell.

Could this be otherwise, it does not appear how far back the

year, shall be and remain the property of the lessor until the sum of $300, rent of each of said years, shall be paid."

The judge, at the trial, held that, at the time of the levy and sale by defendant, the plaintiff was the owner of the cheese, and gave judgment accordingly, which, on appeal, was affirmed upon the reasoning that "property must have an actual or potential existence, in order to be the subject of a sale; this doctrine is so well settled as to have become elementary; but a thing may be the subject of a sale, although not in actual existence, if it has a potential or possible existence, as the product or increase of that which is in existence, and the right to it when it shall come into existence is a present, vested right."

In California, "Ah Chong," a Chinaman, had a lease of land whereon he was growing a crop of peanuts; to secure a debt, he gave to his creditor a mortgage on the land, and turned over to him the possession of the premises, upon an agreement that the creditor should harvest the crop, and pay himself. It was held that when a debtor gives a creditor possession of a given crop, under an agreement that the creditor shall harvest it, and apply the proceeds to the payment of the debt, the creditor thereby acquires a lien on the crop superior to the lien acquired by another creditor who receives from the debtor a mortgage on the crop, after the first creditor has taken possession, and with notice of the rights of the first creditor. (Loveson v. Golland et. al. 45 Cal. 8.)

owner of land might not mortgage expected crops, and by record create liens on what might never exist at all.1

§ 33. Relation of homestead exemption to growing crops. Consideration of the exemption of the homestead from seizure and forced sale on process against the owner suggests the question, "how far does the exemption extend — are the growing crops protected?" If they are to be treated as realty, the exemption extends to the crop; but if personal property, they may be taken, notwithstanding they owe their existence to the land, which is not liable.

By the statutes of many of the States, a homestead of specified value is exempt from seizure upon legal process; upon issue raised as to this value, the Court proceeds to set apart to the head of the family enough of the farm, including the dwelling, to amount to the designated value; where no such issue is presented, the general provisions of the law constitute such a setting apart of the homestead to the beneficiary. This, however, is not a sale: it is but a change in the character of the estate which the homestead claimant has in the land, and his status as to the crop is not changed. If the growing crop is of such a character as to be liable to seizure, the fact that it grows on the homestead works no exemption, and this whether it be

1 Barnard v. Eaton, 2 Cush. 295. In this case, it was held that a mortgage could not apply to goods not in existence, or not capable of being identified at the time of its execution. (Munsell v. Carew, 2 Cush. 50; Cortelew v. Lansing, 2 Caine's Cas. 200; Wilson v. Little, 2 Cons. 443; Bank, Etc. v. Carey, 1 Barb. 542.) "A mortgage of a crop to be raised on a farm during a certain term, passes no title if the crop was not sown when the mortgage was executed, and the mortgagee has no claim against a purchaser of the crop, for it or its value." (Hutchinson v. Ford, 9 Ken. 318.) Probably the strongest case in point is that of Comstock v. Scales, 7 Wis. 160. By the Court-Cole, J.: "The defendant in error claimed the grain in controversy by virtue of a chattel mortgage given upon it about the time the grain was sowed and planted, and before the same was up or presented the appearance of growing grain, and the Circuit Court instructed the jury, upon this point, that as soon as the grain was sown, Hatch, the tenant, could mortgage his half of the crop, and that the same would be held by the mortgage. This instruction we consider erroneous. In our opinion, a chattel mortgage can only operate upon property in actual existence at the time of execution, and cannot be given, as was attempted to be done in this case, upon a crop before it can be said to be in existence. Since the subject-matter of a chattel mortgage was not in esse at the time the mortgage was executed, there was nothing for it to operate upon." (Otis v. Sill, 8 Barb. 102.)

as to the crop growing when it is set apart, or any subsequent crop.1

§ 34. Statute of Frauds in sale of growing crops.—In the application of the Statute of Frauds to contracts affecting growing crops, the same difficulties are encountered which have heretofore been considered in the matter of the sale, mortgage of, and levy upon them, and now, in addition thereto, the special restrictions imposed by the statute should be regarded.

Generally, upon the question of whether growing crops are real or personal property, if by the sale thereof an interest in land does not necessarily pass, the English authorities have been singularly vacillating, and so inconsistent that it is more difficult to harmonize the decisions of the English Courts, and thence deduce a rule, than it has been to arrive at conclusions from the more practical ones rendered by the American Courts.2 It must, therefore, be left with the reader to decide upon the relative value of the decisions as they apply to such special circumstances or cases as he may have under review, and gather from the decisions a rule applicable thereto.

3

§ 35. Ownership of crop dependent upon title to soil. -While growing, the title to crops can only be determined by showing that of the land whereon they are, and this title, under the statute, cannot be proved by parol; but it does not thence necessarily follow that, the title to the growing crop being at the outset confessed to be in the vendor, the sale of the crop is incumbered by the same necessities as to the contract of sale being in writing, mode of proof, etc.

1 Clements v. Lee, 47 Geo. 625. In this case, it was held that "ordinarily the sale of land carries with it the crop then growing on it; but the laying aside of the homestead is not exactly a sale. It is the appropriation of the land for the benefit of the family, to the exclusion of the debts of the head, and does not carry with it the crop then growing on the land (which is often worth more than the land itself) to the exclusion of a lien granted by the husband on such стор."

2 Browne on Statute of Frauds, Sec. 235.

3 It must always be borne in mind that the Statute of Frauds does not declare a certain class of contracts void, but simply determines that they shall be proved in a certain way, by writing, evidence of payment of price, delivery, etc. The statute but establishes a rule of evidence. (Ibid, Sec. 115.)

« PreviousContinue »