Mayer & Co. v. Taylor & Co.

SOMEPYILLE, J.

The subject of mortgages on unplanted crops, not in esse at the time of the conveyance or assignment, has been the subject of much discussion, and the adjudged cases are greatly conflicting. Some of them hold that such a mortgage is void, and conveys no title to the crops, either legal or equitable. — Hutchinson v. Ford, 9 Bush (Ky.) 318; s. c. 15 Amer. Rep. 711; Comstock v. Scales, 7 Wis. 159. Others hold that they are valid at law, and good to convey a legal title.— Arques v. Wasson, 51 Cal. 620; s. c. 21 Amer. Rep. 718; Robinson v. Ezzell, 72 N. C. 231; Jones on Chat. Mortg. §143. Neither of these extreme views, however, has been adopted by this court. Its doctrine in reference to this subject is now firmly settled, that a mortgage executed by the owner, or the lessee of land, on a crop which is not planted, but is to be planted in fui/a/ro, conveys to the mortgagee a mere equitable interest or title, which will not support an action of detinue, trover, or trespass. — Grant v. Steiner, 65 Ala. 499; Rees v. Coats, Ib. 256; Booker v. Jones, 55 Ala. 266; Abraham v. Carter, 53 Ala. 8. This view, is, in our opinion, supported by the weight of authority. — Moore v. Byrum, 30 Amer. Rep. 58; [s. c. 10 S. Ca. 452.] note, p. 63; Fonville v. Casey, 4 Amer. Dec. 559, note, p. 560; Sillers v. Lester, 48 Miss. 513; and other cases cited in Grant v. Steiner, supra.

Tlie principle lying at the basis of these decisions is, that a thing having a potential existence may be mortgaged or hypothecated. By potential existence we understand a present interest in property, of which the thing sold or conveyed is the product, growth or increase, as opposed to a mere possibility or expectancy, not.coupled with such an interest. — Benjamin on Sales, § 78; Low v. Pew, 108 Mass. 347. Hence an assignment of future wages,' there being no existing contract of service, is invalid ; but the assignment is good where there is such a contract of service. — Mulhall v. Quinn, 1 Gray, 105. It is commonly said that a man may sell the wool to be clipped from his sheep at a future time, or the milk his cows may yield in, the coming month or year, and the sale is valid ; but not so as to the wool of any sheep, or the milk of any cow which he may acquire at any time in the future, even though it be but, the next hour. — Benjamin on Sales, § 78. The clear distinc- ' tion is that in the latter cases, the subject of the contract is not in renom naturae, or, as is commonly said, in esse.

“•Land is the mother and root of all fruits. Therefore 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, Hobart Rep. 132. There can be no valid distinction between the wine a vineyard is expected to produce, and the grain or cotton a field is expected to grow, except as to the relative amount of skill and personal labor that may be expended in the two cases. ' Each is the product of property, owned in ypraesenti by the vendor in the case of a sale. — Story on Sales, § 183. In. Andrew v. Newcomb, 32 N. Y. 417, it was said: “ In the case of crops to be sown it [the title] vests potentially from the time of the executory bargain, and actually as soon as the subject arises.” In other words, the lien attaches eo instanti, when the property comes into existence. They come into being together and co-exist, and equity executes the contract by holding that done which is agreed to be done. So, soon as the crop, or other thing mortgaged exists, the vendor, or his assignee with notice, becomes a trustee ‘holding the legal title for tire benefit of the mortgagee. And whenever this equitable ownership, or interest, is once established, the courts will interpose for its protection. — Sillers v. Lester, 48 Miss. 513.

It is plain from these principles that the mortgage executed by Pendergrast to the appellees, Taylor & Co., on February 5, 1880, conveyed to the latter an equitable title or interest in all the crops raised during the current year, on the lands, by the mortgagor or “by his procurement.”

The question presented is, whether he can be permitted, before the planting of the crops and after making this conveyance, to assign an interest in them to a third person, to the prejudice of the lien already created in favor of the first mortgagees. The evidence shows that soon after making the mortgage to Taylor & Co., Pendergrast formed a co-partnership with a Mrs. Kelley for the cultivation of the lands of which he was then in possession, and on which the six bales of cotton in controversy were grown, and that the two contributed work and labor jointly, under the agreement that the profits in the business-were to be equally divided between them as partners, carrying on the farming business under the firm name and style of Kelley & Pendergrast. The partnership mortgaged the property on May Id, 1880, to the appellants, Mayer & Co., and delivered the cotton to them the following fall, they having notice of the prior mortgage to Taylor & Co. The contention is between the lien of the two mortgages.

Our opinion is that, under this state of facts, the interest taken by Mrs. Kelley in the crops to be grown, was taken subject to the equitable lien already created, and of which she had notice. The contribution made to the partnership by Pendergrast was the land with its potential capacity for future products, and his teams and personal services. These were already subject to the operation of an agreement creating an equity against them. When the products or crops came in esse, the mortgagor was to hold the legal title as trustee for the first mortgagees. The interest assigned to the partner, who was let in, was an undivided half interest as tenant in common of every thing produced. The assignee, Kelley, could acquire no greater interest than the assignor had, and must therefore have taken it oum onere. Nemo flus juris ad aliwn transfer re potest, quam ipse habet. (Coke Litt. 309, b.) As between the conflicting liens of the two mortgages, we see no reason which rescues them from the operation of the maxim, that “he who is first in time is stronger in right.” The mortgage given to the defendants, Mayer- & Co., being taken with full notice of the mortgage previously executed to plaintiffs was subordinate to it, and the court ruled correctly in so charging.

The judgment is affirmed.