Atkinson v. . Graves

Ashe, J. It was formerly understood to be the law, that a chattel mortgage could only operate on- property not in actual existence at the time of its execution, and could not cover future products of the land, if given before the land was sown or planted. But these decisions, in modern times, hav6 been superseded by the general adoption of the principle that if the “thing sold or mortgaged be the natural product or expected increase of something to which the seller or mortgagor has a present valid right, the sale or mortgage will be good.” Story on Sales, § 185. Or, in other words, whatever has a potential existence is the subject of sale or mortgage; for example, an unplanted crop or future products of a farm to be raised by one in possession of land as owner or lessee is the subject of sale or mortgage. Jones on Chat. Mort., § 143. So, the wine to be made from a certain vineyard, or the wool that shall grow upon a certain flock of sheep. Benjamin on Sales, 63. These things have no actual existence, but as they are naturally expected to spring from something in which the owner has a present right, they have what is considered a potential existence, and are held to be the subject of sale or mortgage. Story and Benjamin supra; Robinson v. Ezzell, 72 N. C., 231; Cotten v. Willoughby, 83 N. C., 75; Harris v. Jones, Ib., 317. A mortgage or sale of a crop to be raised on a certain field or farm in the possession of the mortgagor or seller is as far as the principle has been carried in respect to un-planted crops; but it has never, as we are aware, been ex *102 tended to the'products of the soil to be raised without designating the place where they are to be produced. In this particular the mortgage in question is radically defective. It is defective in the further particular that it does not designate and identify the property sought to be conveyed, so that it could be separated from other property of like-kind raised by the mortgagor. Benjamin supra, 257. It is quite as uncertain, if not more so, as the mortgage of “ ten new buggies ” out of a lot of fifteen buggies, which was held to be void for uncertainty; Blakely v. Patrick, 67 N. C., 40; or twenty sheep in a flock of one hundred; or ten head of cattle in a drove of fifty; or a thousand feet of saw-logs in a certain, river, without further description to distinguish them from a much larger mass of logs belonging to the mortgagor in the same river, which is held to be void for uncertainty. Croswell v. Allen, 25 Conn., 30. The effect of the chattel mortgage was nothing more than an executory contract, which passed to the defendant only a chose in action which gave him the right to sue the mortgagor for the value of a bale of cotton, if not delivered; but it did not convey to him a chose in possession, so that he might maintain an action for the specific thing. There is error. The judgment of the superior court is reversed. Error. ' . Reversed.