Shepard v. Philbrick

2 Denio 174

Opinion

By the Court, Jewett, J.

A growing crop, raised annually by labor and cultivation is, as it respects an execution against .me owner, a mere chattel, and subject as such to be taken and sold under it. (a) A purchaser on such sale acquires the rights and interest of the defendant in the execution to the crop, with the right of ingress, egress and regress for the purpose of gathering and carrying it away. (Whipple v. Foot, 2 John. Rep. 118; Stewart v. Doughty, 9 id. 112.)

The title and interest of Wright in the crop of wheat in question growing upon the mortgaged premises, -was entirely subject to and liable to be divested by a foreclosure and sale under the mortgage to Green. The crop as well as the land was a security for the mortgage debt; and on the sale of the land under the mortgage passed to the purchaser, that being a paramount title to Philbrick’s title acquired under the execution. (Powell on Mortgages, 1st Am. ed. from 4th Lond. ed. 207 to 210; Lane v. King, 8 Wend. 584.)

Shepard having acquired the title to the mortgaged premises, which carried with it a title to the crop growing, and having acquired actual possession of the premises, showed a perfect title to the wheat in controversy as well against Wright as Phil brick, the latter having no greater right or interest - in the crop, than the former would-have had, if it had not been sold on. execution against him prior to the sale under the mortgage. There must be a venire de novo. (b)

Judgment reversed.

Footnotes

(a)

Green v. Armstrong, 1 Denio, 550

(b)

The English doctrine is well settled in conformity with the point here decided, as appears from the citations from Powell on Mortgages. See also Keech v. Hall, (Doug. 21.) But in England the mortgagee may bring ejectment and the mortgagor is not entitled to notice to quit. In this state it has been long settled that a notice to quit is necessary; (Jackson v. Laughhead, 2 John. 75; Jackson v. Fuller, 4 id. 215; Jackson v. Hopkins, 18 id. 487;) and now by the Revised Statutes ejectment cannot be maintained at all until foreclosure, (vol. 2, 312, § 57.) In Lane v. King, referred to in the text, the growing crops were raised by a tenant of the mortgagor, and the decision was placed upon the ground that such tenant was not in privity with the mortgagee. If the mortgagor, before forfeiture, should put in a crop, and a third person should become a purchaser of such crop, also before any default in paying the mortgage debt; and before the crop was harvested a de fault should occur and the mortgagee should obtain possession under a foreclosure and should enter and take the crop, a question would arise which perhaps is not here decided; for in the principal case it will be seen that a forfeiture must have occurred before the wheat in question was sown. There must have been a default In the second instalment payable in February, 1842, to have warranted a sale upon a foreclosure in March, 1843.