sold, if such be the intention of parties, and that no rule of law will overrule such intention if it be otherwise clearly expressed. Pleasants v. Pendleton, 6 Randolph, 473; Kimberly v. Patchin, 19 N. Y. 330; Russell v. Carrington, 42 N. Y. 118; Chapman v. Shepard, 39 Conn. 413; Waldron v. Chase, 37 Maine, 414

The doctrine held in these cases, it seems to me, is founded on good sense and correct legal principles. The rule that the property in goods. will pass by the contract of sale, if such be the intention of the parties, is of the utmost importance in the transaction of the business of the country, and it ought not to be qualified by exceptions and restrictions which do not arise from the substantial interests of the parties.

In this case, the sale, in all material respects, was complete. The corn had been inspected and approved, and the price agreed on and paid. All these things had been done before the levy of execution. The property had been left with the vendor for the purchaser's convenience. Nothing was left undone but the measuring out the designated quantity from a bulk identical in kind and value, and a delivery to the vendee. That was done after the levy and before suit brought; and there is no pretence that it was unfairly done.

The defendant, by his purchase, and the payment of the price, acquired equitable right that ought, if possible, to be protected; and it is the policy of the law to protect interests acquired for a valuable consideration in good faith, against the claims of execution creditors. In trover property is involved only so far as determines the form of the action and the damages recoverable. The defence was a meritorious one, and no legal principle is in the way of permitting it to be made, if, in fact, the parties intended that the property should pass. That question should have been submitted to the jury, and, for that reason, the judgment should be reversed.

All concur for reversal.

PASSING OF THE TITLE IN THE CASE OF A SALE OF GROWING CROPS

ROCHESTER DISTILLING COMPANY V. RASEY

142 N. Y. 570 (1894)

In February, 1890, the plaintiff recovered a judgment against one Lovell for $147.44. In April, 1890, Lovell, being the lessee of certain farm lands, in order to secure one Page as an accommodation indorser and for the repayment of money borrowed from him, executed and delivered to him a chattel mortgage which covered "the grass now growing upon the premises leased, etc.; also all the corn, potatoes, oats, and

beans which are now sown or planted, or which are hereafter sown or planted during the next year, etc." At the time but a small part of the land had been planted with potatoes, and the greater part of the planting of potatoes and all that of the beans was done in the following month. On July 5th an execution was issued upon plaintiff's judgment, and the sheriff levied upon the growing crops, and advertised their sale in August; at which sale plaintiff purchased them. After the levy by the sheriff, Page, the chattel mortgagee, gave notice, and sold the growing crops to the defendant. Defendant took possession of the property so purchased, and this action was brought to recover its possession. The trial judge, being moved by each of the parties for a verdict in his favor, directed it for the plaintiff as to the beans, and for the defendant as to the potatoes, and ordered the exception taken to that direction to be heard in the first instance at the General Term. That court sustained the plaintiff's exception to the ruling of the trial judge, and ordered a new trial, but allowed an appeal to this court, on the ground that a question of law was involved which ought to be reviewed.

GRAY, J. I think this case does not in principle, differ from any other case where a chattel mortgage has been given upon property in expectancy, and which has no potential existence at that time of its execution. The fact that the subject of the mortgage is a crop to be planted and raised in the future upon land does not affect the determination of this question upon established principles. It may be that precisely such a case, in its facts, has not been passed upon in this court; but there are expressions of opinion in several cases of a kindred nature in the reports of this court and of other courts in this State which leave us in no doubt as to the doctrine which should govern. The proposition that a mortgage upon chattels having no actual or potential existence can operate to charge them with a lien when they come into existence, as against an attaching or an execution creditor, has frequently been discountenanced and repudiated. Grantham v. Hawley, Hob. 133, is the general source of authority for the proposition that one may grant what he has only potentially, and there is no good reason for doubting that that which has a potential or possible existence, like the spontaneous product of the earth or the increase of that which is in existence, may properly be the subject of sale or of mortgage. The right to it when it comes into existence is regarded as a present vested right. That which is, however, the annual product of labor and of the cultivation of the earth cannot be said to have either an actual or a potential existence before a planting. This action being one at law, the inquiry is limited. to ascertaining the strictly legal rights of two contending creditors to the property of their debtor, Powell, in the crops which he had raised. It is unlike some of the cases which have arisen between the lessor of land

and his lessee. In such a case, a different principle might operate to create and suppport the lien of the landlord upon the crops as they come into existence upon the land. The title to the land being in him, an agreement between him and the lessee for a lien upon the crops to be raised to secure the payment of the rent would operate and be given legal effect as a reservation at the time of the title to the product of the land. That was the case of Andrew v. Newcomb, 32 N. Y. 417, where the owner of land agreed with another that he might cultivate it at a certain rent, the crop to remain the property of the landlord until the tenant should give him security for the rent. Judge Denio repudiated the idea that the arrangement could be called a conditional sale of the flax, because the subject was not in existence, He held that the idea of a pledge or of a sale had no application, and that the effect of the contract was to give to the landlord the original title to the crop. His remarks upon the subsequent vesting of the title to crops, when they come into being, have reference to such an arrangement between landlord and tenant, and not to the case of a mortgage or conditional sale to some third person of crops yet to be planted.

McCaffrey v. Woodin, 65 N. Y. 459, was an action in trover. Plaintiff was lessee and defendant was agent for the lessor. The former covenanted in the lease that the latter should have "a lien, as security for the payment of the rent," on all the personal property, etc, which should be put upon the premises, "and such lien to be enforced, on the nonpayment of the rent, by the taking and the sale of such property in the same manner as in cases of chattel mortgages on default thereof." By virtue of this provision in the lease, the defendant took the farm produce. The decision upheld the rights of the landlord to do so, holding that as the crops came into existence they vested in the landlord. It is to be noted that the court considered the case as one to be governed by equitable principles, observing that "the matter comes up solely between the parties, there being no intervening rights of creditors." Referring to Gardner v. McEwen, 19 N. Y. 123, it was remarked that that "is a case between the mortgagee and creditors, and was affected by our act concerning filing chattel mortgages." Treating the question as one for the application of equitable principles, it was held that the lessor was entitled to set up her equitable rights as a defence to the plaintiff's (the Lessee's) action of trover. In the same case, Gray, C., observed that, if the relation of mortgagor and mortgagee had been created between the parties, "it was inoperative upon any property which at the time of its execution was not actually or potentially either possessed or owned by McCaffrey." In Cressey v. Sabre, 17 Hun, 120, where the opinion was delivered by Boardman, J., and was concurred in by Learned and Bockes, JJ., a chattel mortgage upon potatoes (among

other articles of property) which were not yet planted, was held inoperative. The distinction was there mentioned between a case like McCaffrey v. Woodin, where the question of title was between the parties to the contract and one where it arose between the mortgagee and a third person. In Coats v. Donnell, 94 N. Y. 168, Andrews, J., observed that "a contract for a lien on property not in esse may be effectual in equity to give a lien as between the parties, when the property comes into existence, and where there are no intervening rights of creditors or third persons." Kribbs v. Alford, 120, N. Y. 519, recognises the invalidity of a chattel mortgage of property thereafter to be acquired, but holds that, as between the parties, their contract would be construed in equity as creating an equitable lien, which could be enforced.

The idea of a chattel mortgage is that of a conveyance of personal property to secure the debt of the mortgagor, which, being conditional. at the time, becomes absolute if at a fixed time the property is not redeemed; and the statute makes it valid as against creditors of the mortgagor only when filed as directed. The statute provides for the filing as a substitute for "an immediate delivery," or "an actual and continued change of possession of the things mortgaged." Such provisions seem to me to exclude the idea of a chattel mortgage upon non-existent things, or that such an instrument could operate to defeat the lien of an attaching or an execution creditor upon subsequently acquired property. Regarding the chattel mortgage in question as a mere executory agreement to give a lien when the property came into existence, some further act was necessary in order to make it an actual and effectual lien as against creditors. But there was no further act by the parties to the instrument to create such an actual lien, and the levy of the execution upon the crops operated to transfer their possession, from the owner to that of the sheriff. As against his possession, the equities of the mortgages are unavailing for any purpose. Between the two creditors, it is a question of who had gained the legal right to have the crops in satisfaction of his claim, and the equitable right of the mortgagee to them as against his debtor was defeated by the seizure at the instance of the judgment creditor. We are satisfied as to the correctness of the conclusion reached by the General Term below that there should have been a direction of a verdict for the plaintiff for the potatoes and beans obtained from the planting done after the execution and delivery of the mortgage. The order appealed from should be affirmed, and, under the stipulation, judgment absolute should be ordered for the plaintiff, with costs in all the courts.

All concur, except Earl, J., not voting.
Ordered accordingly.

AN ORDER ON A WAREHOUSE IS NOT A DELIVERY

KEELER V. GOODWIN

111 Mass. 490 (1873)

Tort for conversion of 1,000 bushels of corn. At the trial in the Superior Court, before Lord, J., the following facts appeared:

On September 29, 1870, Wesley P. Balch bought 1,000 bushels of corn from the defendants, to be paid for in cash in ten days, and the defendants gave him an order on the warehouse where the corn was stored, being then parcel of a larger quantity lying in bulk. On October 1, Balch indorsed and delivered the order to the plaintiff as security for a loan. The plaintiff did not then know that the corn had not been paid for; but Balch never paid for the corn, and, within ten days from September 29, became insolvent. About fifteen days after the receipt of the order, the plaintiff presented it to the warehouseman and demanded the corn. Delivery was refused for the reason that the order had been countermanded by the defendants; and before this suit was brought the defendants took the corn away. The order was never presented to the warehouseman except as stated above.

The plaintiff offered evidence tending to prove a usage in the grain trade to treat an order on a warehouse as a delivery.

The judge ruled that the action could not be supported, and directed a verdict for the defendants, which was returned. The judge reported the case for the determination of this court; if the ruling was correct, judgment to be entered for the defendants, unless the plaintiff could maintain his action by an amendment; if the ruling was erroneous, the verdict to be set aside and a new trial ordered.

WELLS, J. There are two fatal difficulties in the way of recovery by the plaintiff.

To maintain an action of trover, in favor of one who has never had possession, there must be proof both of title and right of present possession. Fairbank v. Phelps, 22 Pick. 535; Winship v. Neale, 10 Gray, 382; Landon v. Emmons, 97 Mass. 37.

Here was a contract of sale of 1,000 bushels of corn, "parcel of a larger quantity lying in bulk." Until separation in some form, no title could pass. Young v. Austin, 6 Pick. 280; Merrill v. Hunnewell, 13 Pick 213; Scudder v. Worster, 11 Cush. 573; Weld v. Cutler, 2 Gray, 195; Ropes v. Lane, 9 Allen, 502, 510; s. c. 11 Allen, 591. That it was on storage with a third party, as warehouseman, would make no difference in this respect.

Delivery of the order upon the warehouseman authorized him to