Baxter v. Bush

The opinion of the court was delivered by Isham, J. The property for which this action is brought is the produce of a farm leased by the plaintiff" to the defendant for the term of one year from and after the first of April, 1853. Its conversion by the defendant is not disputed. The questions arise, whether the plaintiff has that interest or title to the property itself, which will enable him to sustain the action of trover; and whether the infancy of the .defendant constitutes a defense. To sustain the action, the plaintiff must show a title to the property converted, either general or special, and his right to the immediate possession of it. The lease contains the provision that the plaintiff shall have a full lien on the crops of that year as security for the payment of the rent of sixty-seven dollars and fifty cents. If this provision is sufficient to give the plaintiff a title to the crops, there [469] is no doubt as to his right to recover to the .extent of his lion, as it is conceded that their value is equal to the amount due for rent. In the case of Paris v. Vail, 18 Vt. 277, and Smith v. Atkins, ib. 464, the lease contained the provision that the crops were to be and remain the sole property of the plaintiff as a lien and security for the payment of the rent, and for the performance of all the covenants and stipulations therein. There is no difference in principle between that case and the one under consideration. The plaintiff in that case was to have the sole property in the crops as a lien. It was only to that extent and for that purpose his sole right of property existed. In this case, also, it is a matter of express provision that the plaintiff is to have a lien for the same purpose. He has to that extent and for that object the sole ownership. It is a legal implication in this case, what was expressed in the other. The parties obviously intended that the plaintiff should be the owner and have the control of the crops until the rent for that year was paid, and in all stipulations of that character the intention of the parties should be the rule of construction. The doctrine is well settled that a party may transfer a'title to crops, though not then in esse, and which are to be grown upon the land, and the property will pass as soon as they are grown. That was the very point determined in the cases of Paris v. Vail, and Smith v. Atkins, above cited. The same rule is sustained in England, and in other American cases, and applies not only to the produce of land, but to other cases of contracts where the property is not in esse at the time; Grantham v. Hawley, 14 Viner Abg. 72; Leslie v. Guthrie, 1 Bing. 697; 8 Price 269; Langton v. Horton, 1 Hare. 549; Mitchell v. Winslow, 6 Law Rep. 347; Lewis v. Lyman, 22 Pick. 437. The principles and reasoning upon which that doctrine is founded are fully considered by the court in the cases of Paris v. Vail, and Smith v. Atkins, and to which, for that purpose, it is only necessary to refer. In the case of Brainard v. Burton, 5 Vt. 97, it was held, that a similar provision in a lease was merely an executory contract, and that the lessor acquired no general or qualified property in the crops before they were grown and delivered to him by the lessee. That case, however, is not now regarded as being sound in [470] principal, and is virtually overruled by the cases of Paris v. Vail, and Smith v. Atkins, 18 Vt. 464. The fact that at the time the lease was made the plaintiff took the defendant’s note, with surety,_ for the rent, has no effect upon the plaintiff’s title to this property. He had a right to take the note and also the additional security of a lien upon the crops grown upon the farm, and to pursue his legal remedies upon each and all of them until satisfaction for the rent is obtained. It is not a lien created by law merely, but by the act and express stipulation of the parties. The infancy of the defendant constitutes no defense to this action. It appears that he came of age in September, 1853, but continued in the occupation of the premises during that year. His conversion of this property was a tortious act. His liability in this case does not arise from .any breach of contract, but for an unlawful appropriation to his own use of the plaintiff’s property. In such cases infancy is no defense to the action of trover or trespass; Greene v. Sperry, 16 Vt. 392. The fact, also, that he continued in possession of the premises during the year, and long after he came of age, is a ratification of the tenancy, and renders obligatory upon him the provisions of the lease. The judgment of the county court must be affirmed.