1 See case last reported. - Ed.
I do not think that the instrument, under which the plaintiff entered into the possession of this farm, had the effect of making the possession that of the mortgagee, as that is technically understood. Its very terms seem to preclude that idea; for the possession, which the plaintiff was authorized to take, was qualified and limited to the exercise and enjoyment of certain prescribed acts; namely, to rent it and to apply the net income upon the indebtedness. The mortgage had not become due, inasmuch as there had been no demand for the payment of any indebtedness accrued and to be secured by it, or at any rate, such a demand as the nature of this mortgage required. But I do not think it very important to our decision whether we hold that the possession was technically that of a mortgagee, or one authorized by and assumed under the writing referred to. Although, if that question should be deemed essential, I should regard the possession taken by plaintiff through this instrument of April, 1879, as not equivalent to a possession by surrender of the land from the mortgagor. In this State it must be regarded as settled by the cases that the title of the mortgagor to the land is not changed by the mortgage. It remains as before; while the mortgagee has in the mortgage a security for the mortgagor's debt, which is impressed upon the lands described and incumbers them with the burden of the debt. It must also be regarded as settled that even if the mortgagee goes into possession of the premises by a surrender of them from the mortgagor, the legal title or fee still remains in the mortgagor; and what the mortgagee thereby acquires is the possession of the pledged property. He holds it then for the purpose of paying off the debt, with which it was incumbered, but takes no estate in the land. Kortrightv. Cady, 21 N. Y. 343; Trimm v. Marsh, 54 Id. 599. In Trimm v. Marsh, the question of the effect upon the title, where the mortgagee acquires the possession of the land, was quite fully discussed upon theory and in the light of earlier cases, and the decision should be considered as settling, and, as I think, quite in accordance with the reason of the thing, that a mortgagee, who merely is let into the possession of the mortgaged land does not acquire the legal title.
If we assume that the plaintiff was in possession of the land as by an actual surrender from the mortgagor, his rights in its use were subject to the previous disposition made of the growing crop of grain by the owner of the land. He had planted the crop and it was perfectly competent for him to dispose of it while he held the title to the land. Though, in a sense, a growing crop of grain is a part of the real estate, it, nevertheless, possesses the characteristics of a chattel and is salable and transferable as other personal property is, and may be taken upon execution and sold in discharge of a judgment debt. Whipple v. Foot, 2 Johns. 422; Stall v. Wilbur, 77 N. Y. 158.
The relation which growing crops bear to the land has been frequently the subject of discussion in the courts and is in some respects a peculiar one. They pass to the grantee in a conveyance of the land as appertaining thereto. Wintermute v. Light, 46 Barb. 283; Stall v. Wilbur, supra. And equally upon a sale in foreclosure of a mortgage, the purchaser would acquire with the title to the land the right to the growing crops. Shepard v. Philbrick, 2 Denio, 174.
In England growing crops, which were fructus industriales, that is to say, annual products of a tillage of the earth by the labor of the occupier, have been regarded as chattels, quite independent of the land. Any supposed confusion in the decisions, with respect to their relation to the land, arose rather in the consideration of the question of the validity of their transfer by parol, under the statute of frauds, than in any difference in opinion as to their being chattels.
Distinctions, of course, were made between growing crops of grain and trees, the fruits of trees and perennial plants. Crosby v. Wads-worth, 6 East, 602; Evans v. Roberts, 5 B. & C. 829; Jones v. Flint, 10 A. & E. 753; Rodwell v. Phillips, 9 M. & W. 501.
Those views, as to the legal relation of these annual products of the land to the land itself, obtained and were held here in the early cases of Whipple v. Foot, supra; Shepard v. Philbrick, supra; Green v. Armstrong, 1 Denio, 550; and more recently in the case of Stall v. Wilbur, to which I have referred. Probably the rights of a third person to the growing crops of grain, under a contract of purchase with the owner, would be annulled by the sale upon the foreclosure of a mortgage of the land, according to the decisions in Shepard v. Philbrick, supra, and Lane v. King, 8 Wend. 584, for then the transfer of the title to the mortgaged premises would carry with it to the purchaser a paramount title to the growing crop. But, in the present case, that proposition is not before us and the title of the mortgagor to the mortgaged land was not divested or transferred to the mortgagee with the possession. The defendant, Breese, was the purchaser of the growing crop of wheat and, upon its becoming ripe for harvesting, as well under the express authority of his bill of sale, as without it, impliedly, he had the right of ingress to gather and to carry it away. Stewart v. Doughty, 9 Johns. 108.
His vendor's legal title to the land had not ceased, and the fact of the mere possession having changed to another person, was not sufficient to annul Breese's contract, and was, consequently, inoperative upon his right to enter and carry away the ripened wheat.
We think the conclusion reached by the General Term that the defendant was entitled to the verdict at circuit was correct and, as no other error appears from the record, their order denying plaintiff's motion for a new trial upon his exceptions, and directing judgment on the verdict, should be affirmed with costs.