Opinion
12-30-1887
AYERS et al. v. HAWK et al.
W. H. Walters and B. C. Frost, for complainants. M. Wyckoff, for defendants Gardner & Vliet. W. M. Davis, for the banks.
Bill to foreclose a chattel mortgage, and to settle the rights of mortgage and judgment creditors. The opinion states the facts.
W. H. Walters and B. C. Frost, for complainants. M. Wyckoff, for defendants Gardner & Vliet. W. M. Davis, for the banks.
BIRD, V. C. This bill is filed to foreclose a chattel mortgage, and thereby to settle the rights of mortgage and judgment creditors. The mortgagee claims certain goods and chattels raised by the mortgagor under a contract with the receiver in the cause. I conclude that the complainant is not entitled to any of the hay remaining on the premises. This hay was the share of the tenant, (mortgagor,) allowed to him by the receiver for moving the horses. It seems to me that, when the complainant filed his bill to enforce and carry out the old contract, (the mortgage,) an entirely new relation was created, and especially so when a receiver was appointed. From thence the complainant can claim nothing, except through or at the hands of the receiver, who alone can act for the complainant; and in this case the receiver has contracted that the hay in question shall be the defendant's, (Hawk's.) This evidently took the place of the former contract. It was made for the good of the complainant, and he must accept it. The hay became thereby Hawk's, and he had a right to sell or mortgage it. And this same reasoning applies with equal force to all the other products. I can see no escape from this conclusion. The receiver took charge of certain articles under the order of the court, and by virtue of the power in the chattel mortgage, and contracted with the debtor (the chattel mortgagor) with reference to them, and this was done, presumably, for the good of the estate; and the consideration paid (hay, oats, etc.) or used was just as though he had used so much money of the estate. It was just as though he had first sold what hay, oats, etc., he found there, and had said to Hawk, "I will pay you so much in cash for your work in managing these crops for me in the interest of creditors."
As the testimony stands, two of the notes (the bank notes) were Carpenter's, although drawn by Hawk to the order of Carpenter, and indorsed by Carpenter. Hence the banks can claim nothing by subrogation; the doctrine does not extend to them. But the banks are entitled to have any benefit which may arise from the liens which the mortgagees have on goods or chattels not covered by the execution of the banks. In other words, where one of two creditors has a lien or security beyond what the other has, he must, when called upon so to do, first exhaust such additional lien or security.
There were two judgment creditors, each one taking a levy under his execution on what they both claim to have been a growing crop of corn,—the one making his levy after the corn was planted, and before the stalks had made any appearance above the ground; and the other, after such appearance. Both claim priority. The creditor taking the last levy says the first levy wasineffectual, because there was nothing to levy on; there was nothing visible or tangible. I think the law regards the first levy as good and effectual. There has been a certain amount of work done towards the production of the annual crop. The productions of the soil, and the result of the labor of man, are regarded as chattels; they pass to the executor, and are subject to sale under execution. Westbrook v. Eager, 16 N. J. Law, 81; Bloom v. Welsh, 27 N. J. Law, 177; Wilkinson v. Ketler, 69 Ala. 435; Doremus v. Howard, 23 N. J. Law, 393; Evans v. Roberts, 5 Barn. & C. 829; Benj. Sales, 93-95. After the seed or grain from which the crop is expected to spring has once been cast into the ground in the usual course of good husbandry, it must be regarded as a growing crop. If this be not the safe rule, then when does the plant or seed become a chattel? Shall it be at any period before maturity? It has never been claimed that the crop must have matured. The only possible difference between one period of time and another from the planting to the reaping is that of degree; the nearer perfection the crop becomes, the stronger becomes the assurance that the owner will realize. Beyond this, there cannot possibly be any distinction in right. In this case, when the first levy was taken, enough had been done by the tenant towards the annual crop to have warranted the executor, in case of the death of the tenant, to inventory and claim it against the heir. This general rule was applied to a crop of potatoes in Evans v. Roberts, supra, and potatoes spring or germinate and mature under the ground. This view is opposed by the insistment that there is no crop, no growing grain, until the germ has grown above the surface. It seems to me it would be as logical to say that there is no crop or product until the harvesting or marketing. I cannot comprehend how the law can, in such a case, take notice of any particular step or change in nature's operations or developments. I will advise accordingly.