Holmes v. Holifield

Mr. Justice Worthington delivered the opinion of the court. The validity of the chattel mortgage to appellant is not seriously questioned. Bailey was the tenant of appellee and as such was in possession of the ninety-five acres upon which the wheat in controversy was grown. He sowed, cut, threshed and stacked the wheat and put it in sacks, dividing it as it came from the machine. Whether this Avas in accordance with his contract with his landlord is not material for the decision of this case. So far as the outside world was concerned he Avas in possession of the wheat as it grew, by virtue of being in possession of the land upon which it grew. Frink v. Pratt & Co., 130 Ill. 327; Watt v. Scofield, 76 Ill. 261. Being in possession, he had the legal right to mortgage it to appellant and to deliver it to him upon his mortgage when it was threshed. If appellee’s version of the contract of leasing is correct, it amounted only to Bailey’s agreeing to give him a lien upon property not then in existence, and which, so far as other creditors could know, when it came into existence, was free from liens and incumbrances. Such a promised lien could not prevail against a subsequent valid lien, held by one having no notice of the contract agreement. Gillings v. Nelson, 86 Ill. 591. In this view of the case, the instructions given for appellee, to the effect that if they believed that appellee was in possession of the wheat, etc., were misleading. There was no evidence tending to shoAv that appellee was in possession as against one holding a valid lien. As to his tenant, Bailey* he might have asserted his right of possession until his store bill was paid, if his version of the contract is correct, but not as to other creditors. In instructions of this character the law as to what constitutes possession should also have been stated. Possession involved a mixed question of law and fact which the jury could not correctly determine without knowing what the JaAV was. For the reasons given the judgment is reversed and the case remanded.