Desany v. Thorp

Munson, J. These cases were heard together. Thorp, the defendant in both suits, held against Desany, the plaintiff in the first suit, a real estate mortgage, two chattel mortgages, and a lien reserved upon the transfer of certain personal property in a real estate conveyance; and after conditions broken he brought suits of foreclosure and attachment, and took possession of both the real and personal property, and had certain personal property sold under the lien and the second chattel mortgage. Wilbur, the plaintiff in the second suit, is Desany’s assignee in insolvency. The cases will be considered together. The attachment placed upon the personal property covered that afterwards taken on the reserved lien and the second chattel mortgage. This attachment was dissolved by the proceedings in insolvency, but the suit was entered in court and is still pending. The attachment did not debar the creditor from pursuing his remedies under the lien and the chattel mortgage. Reed v. Starkey, 69 Vt. 200. See Tilton v. Miller, 34 Vt. 576; Brigham v. Avery, 48 Vt. 602. Nor does the pendency of the suit. It can proceed to judgment only by leave of the court of insolvency and for the purpose of determining the amount due. Y. S. 2071. The property was disposed of at a sale duly advertised to take place under both the lien and the mortgage, and without any statement confining the disposal of a given article to either security. The court could properly permit the officer to amend his return, on the mortgage by including the cow inadvertently omitted and the two cows returned as sold under the lien. Nothing affecting the insolvent estate unfavorably has been done or omitted by reason of these errors, and no rights of other parties have intervened. The fact that the defendant, in his foreclosure of the real estate mortgage, petitioned also for a foreclosure of all the personal property claimed by virtue of the reserved lien, did not defeat his right to proceed at law. His different proceedings did not stand upon inconsistent grounds; and [42] any remedy available in the foreclosure suit is waived on argument herein. It is held in this State that a grantor may reserve the crops to be thereafter grown upon the land conveyed, as security for the purchase money. Batchelder v. Jenness, 59 Vt. 104; Darling v. Robbins, 60 Vt. 347. The reservation in this case is of “all the crops, produce and products raised or grown hereafter on said premises”; and the defendant claims that this covers the increase of all stock placed upon the farm. But we think the increase of stock cannot be held as the produce or product of the realty. A reservation of crops is sustained on the ground that they are potentially in the land, but animals are not the direct product of the soil. If the defendant has any title to the animals raised on the farm, it must be as the increase of stock of which he remained the owner. In the deed which the plaintiff received of the farm there was also a conveyance of thirteen co ws and other personal property, conditionally, the grantor reserving the ownership and control of the property. The words here employed are such as create a conditional vendor’s lien. This reservation of chattels, while good as between the parties, was of no effect as against attaching creditors without notice, because not evidenced by a writing signed by the purchaser, and not affording such record notice as the law contemplates. So the defendant’s right to the articles reserved and returned as sold under the lien depends upon the question of possession. The defendant also claims to hold the increase of the stock upon which this lien was reserved. The defendant remained the general owner of the property; French v. Osmer, 67 Vt. 427; and as long as the conditional vendee’s title remained unperfected, he had the same right to the increase that he had to the original animals; for the progeny of animals belongs to the owner of the female. But as the lien was good only as between the parties, the vendor’s [43] right to the increase, as well as to the original animals, depended upon a seasonable taking of possession. The mortgage of 1889 covers eighteen cows, three yearling heifers and five heifer calves. The case shows that at the time this mortgage was given the mortgagor had but eighteen cows, three yearling heifers and five heifer calves. In Huse v. Estabrooks, 67 Vt. 223, a description of animals by sex and age only was held insufficient where there was no finding that the mortgagor did not own other animals of the same description. But we think such a description, and even a designation of so many cows, ought not to be held insufficient when it appears that the mortgagor owned no others of the description given. The plaintiffs make no question as to the sufficiency of the remainder of the description, so we give the matter no examination. Assuming that the chattel mortgage gave the defendant a title to the increase of the mortgaged animals that was good as against the debtor, the defendant could not hold such increase as against third persons, after the period of nurture had passed, without taking it into possession. Enright v. Dodge, 64 Vt. 502. It appears then that as far as the increase is concerned the defendant’s right under the mortgages, as well as his right under the lien, depends upon the question of possession. There was nothing in the manner in which the defendant took possession of the property to deprive him of the rights which ordinarily follow possession. The entry was peaceable and lawful. Fuller v. Eddy, 49 Vt. 11. The attachment of the property prior to the filing of the insolvency petition, by leaving a copy in the town clerk’s office, afforded no support to the defendant’s title. The property was taken into actual possession on the 23d of April, which was after the petition was filed, but before the adjudication of insolvency. The title of the assignee relates back to the time of the filing of the petition. Platt v. Continental Ins. Co., 62 Vt. 166. At that time the debtor [44] was in possession of all the property of which the defendant required possession to perfect his right. If a creditor without notice had then levied an execution upon it, he would have held it against the defendant’s lien and mortgage. It follows that the assignee will hold it under his deed of assignment. The assignee takes all the property which could have been taken on an execution against the debtor at the time the petition was filed. V. S. 2098; Collender Co. v. Marshall, 57 Vt. 232; Rice's Assignees v. Hulett, 63 Vt. 321. The horse, cow and hog, claimed by the debtor under the exemption, were not a part of the incumbered stock, and were properly included in the Desany judgment. The oats, potatoes, corn, beans and sugar, were held by the lien, and none of them should have been included in either judgment. The butter was not so held, and not being exempt, it should have been excluded from the Desany judgment, and included in that of the assignee. The lumber cut for the repair of buildings and fences should not have been included in the assignee’s judgment. The implied license under which it was cut devoted it to a specific purpose, and it could not be diverted from that purpose either by the mortgagor or his creditors. Nor should the stove-wood have been included in the Desany judgment. The debtor’s right to it was confined ■ to its use on the place. Subject to that right, it was the property of the mortgagee. The defendant concedes that the hayrack is properly included in the Desany judgment. It is not necessary to inquire whether articles were improperly omitted from that judgment, for the plaintiffs exceptions were waived on the argument. There seems to be some uncertainty in the designation of one or more of the cows, but as the court ruled that the defendant could hold the property covered by the mortgage of 1889 we assume that no cows covered by that mortgage are included in the assignee’s judgment. The live stock not specified in that mortgage, and the item of pork, were [45] properly included in the judgment for the reasons before stated. The mowing machine was properly included. It was one taken in exchange for the one mortgaged, with the consent of the mortgagee, but the findings are not sufficient to subject it to the lien. Kelsey v. Kendall, 48 Vt. 24. No claim is made but that the syrup barrel is properly included, and we leave the item without consideration. The buggy wagon and driving harness were covered by the mortgage of 1884. No question is made as to the sufficiency of their description. The officer advertised the property under both mortgages, but he sold only under the mortgage of '1889. It is not necessary to consider whether the officer could justify the sale. There might be a wrongful sale by the officer without the mortgagee being liable in trover. Hyde v. Cooper, 26 Vt. 552. It appears that the mortgagee placed the papers in the hands of the officer without giving him any specific instructions. So there was no direction to do anything that the mortgages did not authorize. Nor can the mortgagee be held to have become a wrongdoer by ratification. If the case is one where an acceptance of the avails might amount to a ratification, it could only be upon an acceptance with full knowledge of the facts. There is no finding that the mortgagee had this knowledge, and he cannot be presumed to have ascertained it from the return upon his mortgage, for the officer was required to file that in the town clerk’s office. So these articles were improperly included in the judgment. Judgments reversed, and judgment in Desany v. Thorp for $92.50, and judgment in Wilbur v. Thorp for $504.60.