Smith v. Taber

It must be assumed that the contract between the plaintiff and his lessee, Bossard, was valid, whether viewed exclusively as a chattel mortgage, or as containing a “ lien clause” to enable defendant to enforce payment of rent out of any property of the tenant in and •upon the premises. Reynolds v. Ellis, 103 N. Y., 115 ; 2 N. Y. State Rep., 786; McCaffrey v. Woodin, 65 N. Y., 459 .

The lease before us contains language adequate to create a lien on “all the personal property on said laud, or thereafter brought on” to it, and “ all the personal property and crops raised, and to be raised, on said land * * * shall be bound, and hereby are bound, to said Smith, plaintiff, as collateral security.”

It further declares that for the purpose of securing the said Smith, the lessor “shall have the title to all the personal property of whatever kind raised, made, produced, kept, put or used upon said farm, and he shall have the right of possession thereof at any time, and such title and right of possession is vested in said Smith as collateral security for the faithful performance of all the covenants, etc.

In Cressey v. Sabre, ( 17 Hun, 123 ), Boabdmah, J., said “no such grant is alleged or proved,” and hence, that case differs from this one. The language is apt and broad enough to create a present lien, as well as a present transfer of title, to all property mentioned.

It is more full than the language of the agreement found in Hale v. The Omaha National Bank ( 49 N. Y., 634 ), which only provided for further and future liens being given.

Plaintiff’s agreement, from which we have quoted, was

In Daffus v. Bangs (6 N. Y. State Rep., 553), it appears by the opinion of Bo arum an, J., that the lease given to the defendant “ was never filed,” and hence the lease could not operate as a chattel mortgage.

But plaintiff’s lien being valid as an instrument between ■the parties so as to create a lien, and filed properly as a chattel mortgage, we must consider whether the same is valid as against the defendant, who is a purchaser, for value and in good faith so far as actual knowledge is concerned from Bossard, of the buckwheat raised upon the farm.

Treating the filing of the lease containing the “lien clause” and the security clause vesting the title to the property in the lessor, as equivalent to an actual notice to the defendant, then it must follow that the defendant is not a purchaser in good faith without notice, and hence he only acquired such rights as were possessed by his vendor, as between the vendor and the lessor. Stevens v. Watson, 4 Abb. App. Cases, 302.

The property in question had a potential existence, and hence the transfer was not invalid. Van Hoozer v. Cory, 34 Barb., 12 .

In the case last cited, the defendant had actual “notice-of the claim of the plaintiff.” Here the defendant had constructive notice through the notice filed in the proper town clerk’s office.

In Johnson v. Crofoot ( 53 Barb., 576 ), the lease or chattel mortgage had not been filed, and Teft, the tenant, was in actual possession when the levy was made upon his interest, and the levy was held valid.

In Andrews v. Newcomb ( 32 N. Y., 417 ), it was stipulated title to property should remain in Ray, the landlord.

Here it was stipulated it should vest in Smith, the lessor, and as soon as it came into existence Smith had the right to it, as it was vested in him, to the extent that was needed to secure or pay his debt, and that stipulation was valid. Andrews v. Newcomb (supra.); Farmers’ Loan and Trust Co. v. Long B. Imp. Co., 27 Hun, 91 ; Conderman v. Smith, 41 Barb., 404 ; Jones on Mortgages, 115, §§ 141, 143; Stuart v. Taylor, 7 How, 251 ; Herman on Chattel Mortgages, § 44; Hawkins v. Giles, 12 N. Y. State Rep., 426; Betsinger v. Schuyler, 12 id., 377 ; Dresser v. United Fire Ins. Co., 12 id., 434.

It is suggested by the respondent that the mortgage was void, because there was a contemporaneous agreement that the mortgagor might sell portions of the property. Edgell v. Hart, 5 Selden, 213.

If tire defendant shall give sufficient evidence to bring his case within the principle, the question may be one that should be submitted to a jury.

So, too, if the mortgage of plaintiff is inquired into, a question of fact may be presented in regard thereto. Gardner v. McEwen, 19 N. Y., 123 .

The sufficiency of the demand need not be passed upon, as that was not the ground of the nonsuit, and we are of the opinion that evidence sufficient to raise a question, for a jury in that regard was presented.

Judgment of the county court of Chemung county reversed, and a new trial ordered in that court, with costs to abide the event.

Martin, J., concurs; Follett, J., dissents.