Potts v. Newell

Gileillan, C. J.1 Conceding, as is contended by defendants, that the contract between Gauthier and O’Neil created [563] the relation of landlord and tenant, and that the title to the entire crops was in O’Neil until the one-third which he was to pay or deliver to Gauthier as rent should be set apart as agreed upon, still the plaintiff, as the case stands, was entitled to recover. In that view of the character of the contract, Gauthier had, under it, the right to demand and receive one-third of the wheat as soon as it was threshed, and this right would draw to it the legal title to the third the instant the separation should be made as agreed upon. This right of Gauthier was as clearly assignable as the right to receive a specified rent in money, and, in case of assignment, the title to the third of the wheat would, upon its being set apart, vest at once in the assignee, precisely as it would vest in the assignor if no assignment were made. The mortgage describes the property intended by it as “ all the right, title and interest of the said Louis Gauthier in and to that certain crop of wheat raised upon the land of the said Gauthier, situated in the town of Egan, county of Dakota, and state of Minnesota, by one Robert O’Neil, during the year 1875,” the crop then having been cut and then standing in the shock on the land. As it does not appear that Gauthier had or claimed any right, title or interest with respect to the wheat, except the right, under his contract with O’Neil, to demand and receive one-third of it, the presumption must be that he intended to pass that right, although it may not be very accurately described in the' mortgage. This being so, the wheat sued for became the property of the plaintiff the instant it was set apart. Order affirmed. Footnotes [1] Berry, J., did not sit in this case.