Gandy v. Dewey , 28 Neb. 175 ( 1889 )

Maxwell, J.

About the middle of September, 1886, C. U. Richardson leased of C. C. Dewey and R. W. Dewey 200 acres of cultivated land in sections 27 and 34, town 6, range 10, in Johnson county, agreeing to pay $2 per acre for the same and the lease should be a lien on the crops raised upon the land. The leases were executed prior to the sowing of the crop (winter wheat) and were never filed for record.

On the — day of October, 1886, Richardson executed the chattel mortgage in suit upon the wheat sown upon the land in question to the plaintiff, Mary E. Gandy, which mortgage was filed for record on the — day of October, 1886. After the execution and delivery of the chattel mortgage to the plaintiff, Richardson left Johnson county. .In July, 1887, the plaintiff went to cut the wheat mortgaged to her by said Richardson, and defendants, the Deweys, claimed to have possession by their agent, Joseph Lawson, who went on the land to cut the wheat about the time the agent of plaintiff went to cut the same, and Lawson refused to desist in the further cutting of the wheat, the plaintiff brought this action in replevin. The plaintiff pleads the right of possession under the chattel mortgage above described. The defendants, the Deweys, answered by a general denial. Lawson, who was also made a party defendant, answered, setting up the leases of Richardson and that he had abandoned the same and that the crops therefore reverted to the landlord. L. D. Fletcher & Co. had a mortgage subject to that of plaintiff. On the trial of the cause a verdict was returned in favor of the defendants for the sum of $390, the value of the property, and $47.77 damages, and a motion for a new trial having been overruled, judgment was entered upon the verdict.

The principal contest in this case is between the landlord and mortgagee, the lease not being recorded. This precise question was before this court in Lanphere v. Lowe, 3 Neb., 131, and it was held that the right of the mortgagee was superior to that the of landlord. It is said : “ It is a very ancient rule of law, that a man cannot grant or charge that which he has not,” and in Jones v. Richardson, 10 Met. [Mass.], 488, it is said that this “is a maxim of law too plain to need illustration, and which is fully* supported by all the authorities.” (Bac., Abr., Grants, D, 2; Codman v. Freeman, 3 Cush. [Mass.], 309; 2 Kent Com., 703; Head v. Goodwin, 37 Me., 187; Robinson v. MacDonnell, 5 Maule & Selw. [Eng.], 228; Chynoweth v. Tenney, 10 Wis., 400.)

This doctrine is applied to mortgages of goods which may be subsequently acquired by the mortgagee; it is equally applied to sales of personal property, and rights of property. (Chesley v. Josselyn, 7 Gray [Mass.], 490 ; Rice v. Stone, 1 Allen [Mass.], 569.) The lease not having been put upon record, it could not affect the rights or liens of third parties without notice. They are protected by the registry acts of our state. (Sheldon v. Conner, 48 Me., 584.) There is no evidence showing that the mortgagees of the tenant had any notice whatever of the defendant’s claim of lien upon the building. The building is personalty and was in possession of the tenant when the mortgage was executed. At the time the lease was executed the building, as appears by the facts before us, had no existence as the property of the tenant. Therefore, in any aspect of the case, as it is now before this court, I think the mortgagees secured by their mortgage a lien upon the building, and a superior equity to any claim of the defendant against the same.

The Deweys trusted Richardson for the amount of the cash rent. It is true they were to have a lien on the wheat. This was good between the parties, but to charge third parties with notice, the lease should have been recorded. The Deweys had no interest in the grain itself, except such as they acquired by the lease, and this not being recorded, a bona fide purchaser or mortgagee in good faith would not be charged with notice of the lien. This was so at the time the decision in Lanphere v. Lowe was rendered, and since that time the statute has been amended to require conditional sales, etc., to be recorded in order to protect the interest of the vendor or lessor therein. (Comp. St., ch. 32, secs. 26, 27.) The rights of the plaintiff, therefore, were superior to those of the defendants. The provisions of section 1073 of the Code do not seem to apply where the rent is not reserved in kind, and need not be considered.

It is claimed that the chattel mortgage has been changed since its execution, but a clear preponderance of the evidence shows that such is not the case. The judgment of the district court is reversed, and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.