Smith v. Jenks — 1 Denio 580

Majority

p. 580

Smith vs. Jenks.

Headnote

Though grass, growing, is in general parcel of the realty, yet where it is owned by one who docs not also own the land, it is personal property, and may be mort* gaged and sold as such. Per Jewett, J.

In trespass for personal property, the defendant claimed under a chattel mortgage which had been filed in a town clerk’s office, but there was no evidence as to the residence of the mortgagor when it was executed; it was held void against the plaintiff, a subsequent purchaser on execution of the same property for want of proof that it \yas filed in the proper clerk’s office.

Error to the Madison common pleas. Smith sued Jenks in trespass, before a justice of the peace for taking a quantity of hay. The defendant pleaded the general, issue and gave notice of special matter.

On the trial before the justice, the plaintiff proved a purchase

p. 581

of the hay by himself, on a sale upon execution against Arnold, in September, 1843, the hay having been cut upon land belonging to Hunt, which was occupied by Arnold as a tenant, and at the time of the sale being in a stack in the possession of Arnold; and that the defendant had subsequently taken it away and converted it to his own use.

The defendant gave in evidence a chattel mortgage executed to him by Arnold on the 13th day of July, 1843, embracing, among other things, about six acres of grass growing on the land of Hunt, to secure an actual debt of $15,50, payable on the first day of August following. The hay in question Avas made from this grass, Avhich Avas cut by Arnold and stacked upon other land occupied by him under one Mitchell, Avhere it stood at the time of the sale on execution. The defendant had paid Arnold for cutting and stacking the hay, but there had been no delivery of it to the defendant. The mortgage had been filed in the office of the clerk of the toAvn of De Ruyter, but there Avas no evidence to shew Avhere Arnold resided Avhen it Arms executed, or in Avhat town the grass was growing, Avhen the mortgage was given. The justice gave judgment for the defendant, Avhich Avas affirmed on certiorari.

C. Carpenter, for the plaintiff in error.

A. S. Sloan, for the defendant in error.

The grass of Avhich the hay in question Avas made, Avhen mortgaged Avas growing on land occupied by Arnold,'the mortgagor, as a tenant to one Hunt. Both parties claimed through him, thereby assuming that he, by some agreement, made betAveen him and Hunt, had title to the property in it. This being so, I am unable to see any legal objection to his capacity to sell or mortgage the grass at the time he executed the mortgage to the defendant, so as to pass to the vendee or mortgagee his interest in it. It is true that growing grass, as a general principle, does not come within the description of goods and chattels, and cannot be seized as such under

p. 582

ar_ execution against the owner of the land. It goes to the heii and not to the executor; and the rule is the same with respect to buildings and other fixtures, the property of the person seized of the land. But where the lands are owned by one person and the growing grass or buildings by another, neither the grass or buildings, on the death of the owner, would go to the heir; but would be assets in the hands of his executor. Such buildings are personal property. (Smith v. Benson, 1 Hill, 176 .)^[1]

But it is insisted that the mortgage under which the defendant claims the hay is void for want of evidence that it had been filed pursuant to the provisions of the statute requiring personal mortgages to be filed, (Laws of 1833, p. 402.) The place of filing, except in the city of New-York and in county towns, is the clerk’s office of the city or town where the mortgagor resided when the mortgage was executed, if he was a resident of the state, and if not, in that of the city or town where the property then was. There was no proof on the trial whether Arnold resided in the town of De Ruyter, or even in this state; nor did it appear that the property mortgaged was in that town at the time the mortgage was executed. I am, therefore, of opinion that the mortgage was void as against the plaintiff; and consequently the judgment of the common pleas, as also that of the justice, must be reversed.

Judgments reversed.

(a) (a) See Green v. Armstrong, (ante, p. 550.)