Van Vechten v. McKone — 52 N.Y. St. Rep. 622

Majority

p. 622

John H. Van Vechten, Resp't, v. John McKone, App'lt.

(Supreme Court, General Term, Third Department,

Filed May 9, 1893.)

Headnote

1. Chattel mortgage—After acquired property.

A person may mortgage the future product of Ms farm, or property to ' he thereafter acquired, hut to do so he must clearly express Ms intention and the property must be described in the instrument.

2. Same.

One H., who occupied two farms and was indebted to plaintiff, agreed to give him a mortgage on thirty-five tons of hay, although he stated that he did not think there were thirty-five tons, but he would make it good from hay that grew that year. Plaintiff had the mortgage drawn, and it described the property as thirty-five tons of hay, ‘ ‘ said property now being and remaining in the possession of said ” H. Defendant, a constable, levied upon and sold fifteen tons of hay grown after the giving of the mortgage. Meld, that such hay was not embraced in the mortgage.

Appeal from judgment of Montgomery county court in favor of plaintiff on a new trial had on appeal from justice’s court.

Action for conversion of a quantity of hay.

On the 24th of March, 1890, John Hansett, a farmer of Duanesburgh, Schenectady county, being indebted to the plaintiff, a resident of Florida, Montgomery county, upon a promissory note long past due, went to the plaintiff’s for the purpose of voluntarily executing to him a chattel mortgage upon hay and other property, the hay to be described as thirty-five tons, the mortgagor then stating to the plaintiff that “ he did not think there

p. 623

was thirty-five tons,” but “ would make it good from hay that grew that year.”

Hansett, unaccompanied by the plaintiff, returned to Maria-villein Duanesburgh, and had Walpole draw the mortgage, telling him to put “ 35 tons ” in the mortgage, and left the mortgage with Walpole, who filed it.

The description in the mortgage of hay is “ 35 tons of hay, said property now being and remaining in possession of John Hansett”

During the spring and summer of 1890 the mortgagor had possession of two farms, one on which he cut and harvested hay, his own, the other farm, his mother’s, on which he harvested hay on shares.

On the 31st day of May, 1890,' George Lockwood recovered judgment against the mortgagor, Hansett, for $27.75, upon which execution was issued in September, 1890, to the defendant, a constable of Schenectady county, who in pursuance of said execution levied upon, and on the 4th day of October, 1890, sold the mortgagor’s share, about fifteen tons of hay, then in his possession, harvested by him the summer of 1890 on his mother’s farm on shares.

Simon Calkins, for app’lt; Robert J. Sanson, for resp’t.

I think there can be no question but that a son may mortgage the future product of his farm, or property to be thereafter acquired, but to do so he must clearly express his intention, and the property must be described in the instrument.

A chattel mortgage must contain such a description of the property covered as, will enable third persons clearly to identify the property, when aided by inquiries which the instrument indicates and directs. 3 Amer. & Eng. Encyclopedia of Law, 180. Such description must cover property in being as well as that to be thereafter acquired. In McCaffrey v. Woodin, 65 N.Y., 464 -67; Wisner v. Ocumpaugh, 71 id., 113; Coats v. Donnell, 94 id., 177; Kribbs v. Alford, 120 id., 519; 31 St. Rep., 564 ; Green v. Armstrong, 1 Den., 550 ; Smith v. Taber, 46 Hun, 313 ; 14 St. Rep., 644 ; Betsinger v. Schuyler, 46 Hun, 352 ; 12 St. Rep., 377 , the instrument, whether lien, lease, or chattel mortgage, by apt words and expressions set forth the intention of covering property to be thereafter acquired, produced or raised.

In the chattel mortgage in-this case there is no reference expressly or by implication to property to be acquired or produced thereafter, and being none, the mortgage must be construed to cover only property in existence at the time of the execution of the mortgage.

The hay seized by the defendant under his execution not having been in existence at the time of the execution of the mortgage, was not embraced by it, and the defendant is not liable to the plaintiff for its conversion; it follows, therefore, that the judgment should be reversed.

Judgment of county court reversed, with costs.

Mayham, P. J., and Putnam, J., concur.