By the Court,
Johnson, J.
The action was for the taking and conversion of the personal property of the plaintiff. The defendant justified the taking by virtue, of the provisions of a certain lease from. Catharine Beahan to the plaintiff which was claimed to be a chattel mortgage of the property taken, and that he was acting as the agent of the mortgagee. The provision.in the lease, under which the plaintiff held the farm, was as follows: “ It is agreed that the said party of the first part shall have a lien, as security for the payment of the rent aforesaid, on all goods, implements, stock, fixtures, tools, and other personal property which may be put on said premises, and such lien to be enforced, on the non-payment of the rent aforesaid, by the taking and sale of such property, in the same manner as in cases of chattel mortgage on default thereof.” The property was taken in default of the payment of rent due by the terms of the lease, and consisted of hay, corn and oats, which had been raised on the premises during their occupancy^ under the lease, and a pair of horses and harness. The plaintiff forbade the taking. The property was removed from the premises, and advertised and sold, as upon a chattel mortgage.
It is very clear, that this provision in the lease did not constitute a bargain and sale of the plaintiff’s property, by way of mortgage or otherwise. There are no words of sale, assignment or transfer, and it is obvious that the design was, that the title should remain in the plaintiff. Indeed it is not claimed, on the part of the defendant, that [323] the agreement in the lease operated as a sale or transfer of title, to the landlord, even conditionally, but conferred the right to seize and sell only. It was correctly held in the case of Milliman v. Neher, (20 Barb. 37, 40,) that a clause like the one in question, in a lease, was not a chattel mortgage upon the property therein specified or referred to. The language is, “ it is agreed” that the party of the first part “ shall have a lien as security for the payment of the rent.” . It is equally clear that the provision did not create a lien in the eye of the law in prcesenti upon the property specified, in favor of the landlord. A lien upon personal property, whether arising by operation of law, or from express contract, is a right of detaining the property of another until some claim is satisfied, and cannot exist without possession of the property in the person making the claim. .
According to all the cases and authorities, the lien, as a legal right, ceases when possession is parted with, and cannot exist without possession. It is unnecessary to cite authorities to sustain a proposition so elementary. Here the possession was never in the lessor, until it was taken for the purpose of selling the property, and the agreement did not contemplate that it should be. The provision is clearly nothing more nor less than that the landlord should have a lien, by way of security, in future, whenever rent became due, and remained unpaid. It was an agreement to give a lien, but it did not create one. If it conferred any right upon the landlord, it was a chose in action upon the agreement, and not a chose in possession. This agreement for a lien is, however, accompanied by a license or power to enforce the right without action. This is in the nature of a power or authority to the landlord, to take and sell the plaintiff’s property, on which the lien was to be given, for the purpose of obtaining payment of the rent in arrear, in the same manner as in cases of chattel mortgage, in default of payment thereon.
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By the Court,
Johnson, J.
The action was for the taking and conversion of the personal property of the plaintiff. The defendant justified the taking by virtue, of the provisions of a certain lease from. Catharine Beahan to the plaintiff which was claimed to be a chattel mortgage of the property taken, and that he was acting as the agent of the mortgagee. The provision.in the lease, under which the plaintiff held the farm, was as follows: “ It is agreed that the said party of the first part shall have a lien, as security for the payment of the rent aforesaid, on all goods, implements, stock, fixtures, tools, and other personal property which may be put on said premises, and such lien to be enforced, on the non-payment of the rent aforesaid, by the taking and sale of such property, in the same manner as in cases of chattel mortgage on default thereof.” The property was taken in default of the payment of rent due by the terms of the lease, and consisted of hay, corn and oats, which had been raised on the premises during their occupancy^ under the lease, and a pair of horses and harness. The plaintiff forbade the taking. The property was removed from the premises, and advertised and sold, as upon a chattel mortgage.
It is very clear, that this provision in the lease did not constitute a bargain and sale of the plaintiff’s property, by way of mortgage or otherwise. There are no words of sale, assignment or transfer, and it is obvious that the design was, that the title should remain in the plaintiff. Indeed it is not claimed, on the part of the defendant, that [323] the agreement in the lease operated as a sale or transfer of title, to the landlord, even conditionally, but conferred the right to seize and sell only. It was correctly held in the case of Milliman v. Neher, (20 Barb. 37, 40,) that a clause like the one in question, in a lease, was not a chattel mortgage upon the property therein specified or referred to. The language is, “ it is agreed” that the party of the first part “ shall have a lien as security for the payment of the rent.” . It is equally clear that the provision did not create a lien in the eye of the law in prcesenti upon the property specified, in favor of the landlord. A lien upon personal property, whether arising by operation of law, or from express contract, is a right of detaining the property of another until some claim is satisfied, and cannot exist without possession of the property in the person making the claim. .
According to all the cases and authorities, the lien, as a legal right, ceases when possession is parted with, and cannot exist without possession. It is unnecessary to cite authorities to sustain a proposition so elementary. Here the possession was never in the lessor, until it was taken for the purpose of selling the property, and the agreement did not contemplate that it should be. The provision is clearly nothing more nor less than that the landlord should have a lien, by way of security, in future, whenever rent became due, and remained unpaid. It was an agreement to give a lien, but it did not create one. If it conferred any right upon the landlord, it was a chose in action upon the agreement, and not a chose in possession. This agreement for a lien is, however, accompanied by a license or power to enforce the right without action. This is in the nature of a power or authority to the landlord, to take and sell the plaintiff’s property, on which the lien was to be given, for the purpose of obtaining payment of the rent in arrear, in the same manner as in cases of chattel mortgage, in default of payment thereon.
[324] This is, in law, a license, which in all cases is, essentially, an authority or power to do certain acts. It is an authority, resting in contract, to the landlord to take certain property of the tenant, and sell it at public or private sale, as in- the case of a chattel mortgage, upon default, and convey or transfer, in that manner, a title to the purchaser, and from the avails to satisfy the arrears of rent. But being in the nature of a license, it was revocable, and when the plaintiff forbade the taking by virtue of the lease, he revoked and put an end to the license or authority, leaving the landlord to his remedy upon the contract. Had the plaintiff not interfered, but permitted the taking and sale to go on without objection, the license or power would have been executed according to the agreement, and no right of action would have accrued to the plaintiff against any one, because the acts would have been justified by the license, and the purchaser at the sale would have acquired a good title through the exercise of the power conferred by the owner of the property, and the donor of the power. But when the plaintiff elected, as was clearly his legal right, to revoke the license or authority, and put an end to it, the landlord was remitted to his remedy by action, and cannot justify under the power, which no longer subsisted. There is but a single exception to the right of the licensor, or donor of a power, to revoke at pleasure, and put an end to it, and that is where the license or power is annexed, as an incident, to a valid grant, and its exercise is necessary to a beneficial enjoyment of the grant. As in the case of a grant of real estate, or of a right therein, or in the case of a chattel mortgage, with a power of sale therein. In such case the license is connected with the title, or the right in the property, and its exercise is necessary to the complete enjoyment or fulfillment of the right, and it cannot be revoked. But in all other cases the right of revocation is unlimited, in whatever form, and with [325] whatever ceremony it may have been given. The licensor may revoke at anytime before execution, even after the licensee has commenced to act under the authority conferred. So far as the licensee has gone in execution of the authority, before revocation, his acts are justifiable, but his acts after that are tortious, and can derive no benefit or sanction from the revoked power. The cases upon this subject are quite numerous, but I shall cite only a few. (Babcock v. Utter, 1 Keyes, 115. Ex parte Coburn, 1 Cowen, 568. Mumford v. Whitney, 15 Wend. 380. Jamieson v. Millemann, 3 Duer, 255.. Tillotson v. Preston, 7 John. 285. Simpkins v. Rogers, 15 Ill. 397. Woodward v. Sulez, 11 id. 157. Wood v. Leadbitter, 13 Mees. & Welsb. 838. Bryan v. Whistler, 8 Barn. & Cres. 288. Hewlins v. Shipman, 5 id. 222.) Many more cases, both American and English, might be cited to the same effect. In the eases of Wood v. Leadbitter, and Bryan v. Whistler, (supra,) it was held, after great consideration, that where the license had been paid for, and the licensee had entered into performance, and enjoyment under it, the licensor might revoke it without refunding the money paid, and that the right would then cease, leaving the licensee nothing but a right of action for his money. The license, or authority in the case at bar, not having been connected with any title to the property, or any right in possession, was therefore revocable at the election of the plaintiff, and when he revoked and forbade the taking and removal of the property, its removal and sale afterwards were wholly without authority, and tortious, the same as though no authority had ever- been given. In the view which has been taken, i't becomes wholly unnecessary to consider the question as to the rights of the landlord under the agreement, and the partial delivery and redelivery of a portion of the property afterwards taken, is wholly immaterial.
The plaintiff’s title and right of possession remained [326] throughout as it was when the contract was made. The ruling at the circuit was therefore right, and the j udgment must he affirmed.
[Fourth Department, General Term, at Oswego,
May 7, 1872.
Mullin, P. J., and Johnson and Talcott, Justices.]