Walter A. Wood M. & R. M. Co. v. Minneapolis & N. E. Co.

Yanderburgh, J. The plaintiff claims to be entitled to certain wheat in defendant’s possession by virtue of a chattel mortgage made by one McKellar, who raised the wheat, and is alleged to have wrongfully sold and delivered the same to the defendant, notwithstanding [406] the mortgage. The mortgage was dated August 10, 1889. It was given to secure two notes, of $70 each, and was intended to cover a part of the next year’s crop of the mortgagor; the description therein being as follows: “All the crops, wheat, oats, barley, flax, and corn, that shall be sown, planted, grown, raised, or harvested during the years A. D. 1890, 1891, on the following described land, now in my possession, in the town 161, R. 76, county of Bottineau and state aforesaid, to wit, 40 acres of wheat on N. B. sec. 4, T. 161, R. 76. ” It is also alleged that the mortgagor raised on seventy-five (75) acres in said quarter section a large crop of wheat, which, when harvested and threshed, amounted to about six hundred (600) bushels. The plaintiff claims and alleges that the wheat raised on forty (40) acres out of the seventy-five (75) acres mentioned was subject to the lien of the mortgage, and amounted to about two hundred and twenty (220) bushels; but that the mortgagor sold and delivered to the defendant the entire product of the seventy-five (75) acres, in fraud of the-rights of the plaintiff. It does not appear that any attempt was ever made to sever the crop raised on forty (40) acres, or the two hundred and twenty (220) bushels alleged to have been raised thereon, from the whole product or mass of wheat raised on the seventy-five (75) acres, or that the yield was uniform over the tract. It is alleged that the defendant took with notice of plaintiff’s mortgage and claim to the grain raised on forty (40) acres, but it does not appear that forty (40) acres of the grain was ever separately designated as a part of the seventy-five (75) acres. We do not need, however, to consider what effect upon the rights of the parties such separation would have had if it had been seasonably made. Upon the facts alleged, the mortgage failed to take effect upon any part of the crop raised on the seventy-five (75) acres. Whether we apply the doctrine that the landowner has a potential interest in the future products of his farm, or that a mortgage of property not yet acquired or in existence is to be treated as an executory agreement, which becomes operative as a mortgage, and attaches to the property when so acquired or in esse, it is settled that he may mortgage his crop in advance, and the mortgage will attach thereto as soon as it comes into existence, and, as respects the subject:matter, will take effect as of [407] ■that time; but the property mortgaged must be capable of identification, as in other cases. Ludlum v. Rothschild, 41 Minn. 218, (43 N. W. Rep. 137.) Though evidence aliunde may be received to apply or connect the description therein with the property claimed to be mortgaged, the description in the mortgage must be sufficient for such purpose. Souders v. Voorhees, 36 Kan. 142, (12 Pac. Rep. 526.) Whether in this instance the plaintiff could acquire any lien at all •must depend upon the subsequent action of the mortgagor. As already suggested, the mortgage could not take effect until the crop ■was sown, and as he sowed,, not forty (40) acres or less, but sevenfyifive (75) acres, and the mortgage was limited to forty (40) acres,— but no particular forty (40) acres was designated or described, — it is impossible to determine which part of the larger tract the mortgagee is entitled to. There is nothing in the mortgage to connect it with ■any particular forty (40) acres; so that it did not, in fact, take effect at all. Suppose, after it was harvested and in shock or stack, the whole product of the seventy-five (75) acres had been levied on, what part of it could the mortgagee identify and demand as his ? Clearly be was not entitled to claim a lien on the whole till he could select •the product of forty (40) acres. Under these circumstances, the mortgagee cannot invoke the aid of the court to enforce his mortgage. It was the mortgagee’s own folly to take a mortgage so loosely •drawn. Order reversed. .(Opinion published 51 N. W. Rep. 378.)