Butterfield v. Baker

Per Curiam. The question is, whether the property in the chattels replevied was or was not in the plaintiff. The land was owned by her, but was leased to Allen at an -annual rent, payable quarterly. Under such a lease, in general, the lessee is the owner of the produce, and the plaintiff, therefore, to support her claim, must show that it was sold or mortgaged or pledged to her by the lessee. For this purpose she relies on the provision, that all the produce deposited on the land is [525] to be at her disposal, and that she may enter to take it for the payment of any rent that may be in arrear. As against creditors of the lessee, we think this does not amount to an absolute sale or a mortgage ; for in such case there must be not only a contract, but a sale completed by a delivery of the property. So are the cases reported, and the question has turned on the subsequent possession of the vendor or mortgager as evidence of fraud. Brooks v. Powers, 15 Mass. R. 244.1 The distinction is, that where a contract of sale is complete, it gives a right as between the parties, without a delivery, and the vendee may maintain trover for the article or the vendor assumpsit for the price ;2 but as to subsequent purchasers without notice or creditors, the sale is not valid without a delivery. Lanfear v. Sumner, ubi supra. [See Peters v. Ballistier, 3 Pick. (2d ed.) 500, n. 1.] The case of Beaumont v. Crane, 14 Mass. R. 400, is the only one which could give rise to a different view of the law, but it was held there that the parties to the contract were originally tenants in common, and so no delivery was necessary ;3 and this rather corroborates the doctrine of the other cases. Nor is there in the case before us a pledge, for that requires not only a delivery but actual possession.4 On every view, therefore, this attempt to secure rent out of future crops must fail as against creditors, although it be valid as against the lessee.5 And it would be mischievous to hold otherwise, as the lessee by the agreement has a right to dispose of the produce, and it is his to all intents and purposes until a creditor comes to take it, and then the lessor would step in to prevent the attachment. It is further to be remarked, that the lease reserves to the lessor a right of entry to take possession of the produce. Now if the lessee were in as her servant, this was unnecessary. The instrument was intended, no doubt, to operate like common leases, until it should be necessary for the lessor to enter for her security and take the produce. This is fraudulent as against creditors Judgment affirmed Footnotes [1] See Rand’s ed. 248, n. a ; Wheeler v. Train, 3 Pick. (2d ed.) 257, n. 1. 2 Kent’s Comm. (3d ed.) 515, et seq. [2] See 2 Kent’s Comm. (3d ed.) 492, et seq. [3] See Addis v. Baker, 1 Anstr. 222 ; Haskell v. Greely, 3 Greenl. 425. [4] See Ward v. Sumner, ante, 60, n. 1. [5] See Shumway v. Rutter, 7 Pick. 56; Flagg v. Dryden, 7 Pick. 52, Gardner v. Howland, 2 Pick. (2d ed.) 602, notes; Peters v. Ballistier, 3 Pick. (2d ed.) 500.