McCombs v. Becker

Landon, J. The plaintiff is the purchaser of a quantity of hay, sold by the sheriff upon an execution against the property of the tenant of the defendant.' The defendant, who, after the sale, converted the hay to his use, claims that by virtue of the agreement and lease between him and his tenant, he, and not his tenant, was the owner of the hay. If his claim can be sustained, then the judgment against him should be reversed. It was entirely competent for the defendant and his tenant to agree that the hay to be raised upon the demised premises should be and remain the property of the defendant, until the rent should be paid, and the conditions of the lease satisfied by the tenant. Instead of. the tenant mortgaging the crop to be grown as security for the rent, he may agree that the crop shall .be the landlord’s until the rent be paid. In the one case the agreement is that the crop shall be the landlord’s if the tenant does not pay the rent; in the other, that it shall not be the tenant’s property until he does pay it. Andrew v. Newcomb, 32 N. Y. 417; Van Hoozer v. Cory, 34 Barb. 9. The case of Johnson v. Crofoot, 37 How. 59, does not hold otherwise, but does hold that the terms of the contract in that case gave the landlord only a chattel mortgage interest, which was defeated for-want of due filing. The difficulty with this defendant’s case is, that he did not, by his agreement with his tenant, provide that the title to the hay should remain in him. He made such an agreement as to the butter, cheese, and grain, and this agreement as to them discloses more strikingly the lack of it as to the hay. The tenant simply agreed “ to take good care of the cows,” and in case the hay raised upon the demised farm should fail to be sufficient to winter them, his landlord should supply the deficiency at the rate of 13 per ton, and [553] if there should he a surplus, the landlord should have it and pay the tenant $3 per ton for it. So long as the tenant “ took good caré of the cows ” the landlord could not complain of the disposition he made of the hay. If he sold it and starved the cows, the landlord’s remedy would not be against the purchaser of the hay, but against the tenant for condition broken, in not taking good care of the cows. True, the landlord was to have the surplus hay and pay $3 per ton for it, but this was an executory contract for its purchase, the breach of which would be compensated in damages. It follows that the hay was the tenant’s, and subject to sale upon execution against him. We see no force in the objection that the levy was not sufficiently proved. The indorsement by the deputy sheriff upon the execution shows that he levied upon hay within the life-time of the execution. The presumption is that a sheriff who sells property on execution has previously made a levy. Hartwell v. Root, 19 Johns. 345; Smith v. Hill, 22 Barb. 656. The judgment should be affirmed, with costs. Judgment affirmed.