majority">Hill, J. —

This suit originated before a justice of the peace, and is replevin for the recovery of certain corn raised by defendant Lemley in the cropping season of 1896. In February of that year, and before planting time, Lemlqy executed a chattel mortgage to plaintiff Littlefield, covering in terms the crop he (Lemley) was to raise the coming season. Lemley subsequently planted some corn; and during the summer, and while the crop was growing, he placed another chattel mortgage on the corn in favor of T. Gr. Bradley. At gathering time said Bradley took possession of the corn, sold it under his mortgage, and defendant Nick M. Bradley became the purchaser. Thereupon plaintiff brought replevin for the corn; and at the trial in the circuit court, where the case was taken by appeal, the court directed a verdict for defendants and plaintiff appealed.

*515gages: crop in rfen:h?m'lsdic-e*514It is the settled law of this state that a mortgage of chattels not in existence at the execution of the instrument, will not pass the legal title of such after-*515acquired property. When the property comes into existence an eqmtable lien will attach, but to enforce this the mortgagee must resort to equity. Scudder v. Bailey, 66 Mo. App. 40, and cases cited; France v. Thomas, 86 Mo. 80. It seems, however, that if the mortgagee shall take possession of the after-acquired property, before other rights have attached, then the legal title will become vested. Keating v. Hannenkamp, 100 Mo. 162. And so, by jthe great weight of authority it is held, that a mortgage of an unplanted crop will not pass the legal title thereto when it shall come into existence, unless possession thereof be taken by the mortgagee. I Cobbey on Chat. Mortg., sec. 373, et seq., and numerous authorities cited.

While it is true that one may make a valid chattel mortgage of a thing in potential existence at the time, such as a crop already seeded and growing, yet as to a crop not planted at the time of the mortgage it will be non-effective to convey the legal title. In Jones on Chattel Mortgages (section 143) the author seems to think that a mortgage on an unplanted crop is generally held to be good and valid at law; but an examination of the authorities, will disclose a contrary holding. In the case at hand the plaintiff mortgagee did not at any time take possession; he had then only such title as he could enforce in equity. This suit however was brought before a justice of the peace who had no equity jurisdiction. And as there was no jurisdiction before the justice, neither was there any in the circuit court where the case went by appeal. The judgment then must be affirmed.

All concur.

Citation profile

Relationships

How this case has been treated — in progress