Smith v. Jenks

1 Denio 580

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: October 15, 1845
• Status: Published

Opinion

By the Court, Jeavett, J.

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 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.)

(a)

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.

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