SUPREME COURT OF TENNESSEE.

April Term, 1877.

MORTGAGE OF CROP TO BE PLANTED.-A mortgage by the owner of land upon a crop yet to be planted is valid against an execution creditor.

Action to determine the right to cotton levied upon under an execution upon a judgment in favor of defendant and claimed by plaintiff by virtue of a mortgage. The opinion states the case.

SNEED, J.

The agreed case shows that the plaintiff agreed to furnish one Houston McCain with supplies, on condition that McCain, who was a farmer, should execute to the plaintiff a mortgage of his cotton crop, for the then current year (1875), as a security for the supplies so furnished. A deed of trust to that effect was accordingly executed in February, 1875, "upon a crop of cotton to be planted and grown upon the land of the said McCain, in the year 1875, to secure said Wyatt for supplies furnished and to be furnished to said McCain, to enable him to make said crop." This deed of trust was duly registered. When the crop matured and became subject to levy, the defendant, Watkins, having recovered a judgment against McCain for the sum of $42.95 before the execution of the deed, caused an execution to be levied on enough of the cotton to discharge his debt; and this action was brought to determine who has the better right. The question presented is, whether a crop of cotton yet to be planted is the subject of a valid mortgage; and the adjudged cases seem to be very much in conflict on the subject. A humane policy would seem to favor the affirmative of the proposition; as, if such is the law, the indigent farmer may obtain credit upon his prospects, and be enabled to subsist his family pending the cultivation of his crop. The case of Grantham vs. Hawley, reported by Sir Henry Hobart in the reign of James I., is one of the earliest upon the subject, and has been frequently cited in support of the doctrine that a thing not in esse may be the subject of a valid chattel mortgage. That case, as cited, was as follows: A man seized of land let the same by indenture for twenty-one years, and covenanted that it should be lawful for the lessee, his executor and assigns, to carry away to his own use such corn as should be growing upon the ground at the end of the term; and afterward the lessor released his reversion; and one question was, whether the lessee was entitled to corn so growing; and it was argued, on the part of the assignee of the reversion, that it was merely contingent whether there should be corn growing upon the ground at the end of the term or not, and that the lessor never had property in the corn; and, therefore, could not give nor grant it, for the right to the corn standing at the end of the term, being certain, accrued with the land to the lessor. But judgment was given against the reversion, because it was said that the property, and very right of the corn when it came into being, was passed away, for this was both a covenant and a grant; and, therefore, if it had been of natural fruits, as of grass or hay, which run merely with the land, the like grant would have carried them in property after the term. Then, though corn were fructus industrialis, so that he that sowed it might seem to have a kind of property ipso facto in it, divided from the land, and, therefore, it would go to the executor, and not to the heir; yet, in this case,

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all the color the reversioner had to it was by the land which he claimed from the lessor who gave the corn; and though the lessor had not the corn actually in him, nor certain, yet he had it potentially, for the land was the mother and root of the fruits. Therefore, he that had that might grant all fruits that might arise upon it afterward, and the property would pass as soon as the fruits were extant." Hob. 132; 1 Pow. Cont. 157, 158, 2 Walp. Ed. When stripped of all quaintness of verbiage, the plain doctrine of this old case is, that he who owns the soil may sell or assign the crops to be grown upon it. It is said, in Benjamin on Sales, that in relation to things not yet in existence, or not yet belonging to the vendor, the law considers them as divided into two classes, one of which may be sold, while the other can only be the subject of an agreement to sell of an executory contract. Things not yet existing which may be sold are those which are said to have a potential existence, that is, things which are the natural product, or expected increase, of something already belonging to the vendor. A man may sell the crop of hay to be grown on his field, the wool to be clipped from his sheep at a future time, the milk his cow will yield in the coming month, and the sale is valid. But he can only make a valid agreement to sell - not an actual sale- where the subject of the contract is to be something to be afterward acquired; as the wool of any sheep or the milk of any cows that he may buy within the year, or any goods to which he may obtain title within the next six months. (Benj. on Sales, § 78.) The precise point now in judgment, however, has been adjudged against the proposition, that a thing not in esse is the subject of a valid sale or mortgage. Thus it was held in Hutchinson vs. Ford, 9 Bush, 318, where this exact question was involved, that “a mortgage of a crop to be raised on a farm during a certain term, but which is not yet sown, passes no title, and the mortgagee has no claim against a puachaser of the crop for it, or its value." Everman vs. Robb, 3 Cent. L. J. 735; Ofin vs. Sill, 8 Wend. 111; Lunn vs. Thornton, 1 Man., Gran. & Scott, 379; Barnard vs. Eaton, 2 Cush. 295; Bank of Lansingburgh vs. Cary, 1 Barb. 542; Comstock vs. Scales, 7 Wis. 159; Redd & Co. vs. Burris & Williams, Mss., Ga. 1877.

Many other authorities might be cited to the same effect, and quite as many that look in the other direction. Andrews vs. Newcomb, 32 N. Y. 417; 3 Law Reg. 19-33; 17 Conn. 144; Holroyd vs. Marshall, 10 H. L. Cas. 189; 18 Pick. 168; 14 id. 497; 10 Metc. 481; 12 Cush. 376; Brett vs. Carter, Cent. L. J., May 5, 1876; 32 N. H. 484; 18 Ver. 465; 1 McCaslin's Ch. Rep. 408; 24 Wis. 551; 26 Ill. 121; 48 Ala. 109; Butt vs. Ellett, 19 Wall. 544; 42 N. Y. 620. In one of these cases it is said: "In the case of crops to be sown, it vests potentially from the time of the executory bargain, and actually as soon as the subject arises." Andrews vs. Newcomb, 32 N. Y. 477. Mr. Story says, that rights in remainder and reversion, possibilities coupled with an interest, rents, franchises and choses in action, are capable of being mortgaged. (Eq. Jurisp., § 1021.) A court of equity, he says, will support assignments, not only of choses in action, and of contingent interests and expectancies, but also of things which have no present, actual, or potential existence, but rest in mere possibility; not, indeed, as a present positive transfer operative in presenti (for that can only be of a thing in esse), but as a present contract, to take effect and attach as soon as the thing comes in esse. (Id., § 1040.) Among the exam

ples he cites is that of the assignment of the head-matter and whale-oil to be caught in a whaling voyage now in progress. The right will attach to the head-matter and whale-oil when attained. (Id.) So strongly are courts of equity inclined to uphold assignments when bona fide made, that even the assignments of freight, to be earned in the future, is good in equity, and will be enforced against the party from whom it becomes due. (Id., § 1055.) In Story on Sales, it is said: "While a person cannot make a present sale of all the wool there may grow on a sheep, which he may hereafter buy, nor any other thing in which his interest is wholly prospective and doubtful, there may be made a valid sale of the wine a vineyard is expected to produce, or the grain a field is expected to grow, the milk of a cow for the next year, or the future young of animals." (Story on Sales, § 183; McCarty vs. Blivens, 5 Reg. 106.) Whatever is the subject of a valid sale is, of course, the subject of a valid mortgage. A man may sell or mortgage every thing that is his property; and such a sale, if bona fide, will be upheld in law and equity. Property is the right and interest a man has in lands and chattels to the exclusion of others. (17 Johns. 283; 11 East, 290; 4 Pet. 511.) All property, real or personal, corporeal or incorporeal, movable or immovable, may be the subject of mortgage. (1 Hill, Mort. 6.) Things are said to have a potential existence when they are the natural product, or expected increase, of something already belonging to the vendor. (Low vs. Pew, 11 Am. Rep. 357.) The term “incorporeal property" includes all legal rights. The right in the proprietor of the soil to plant, cultivate, and gather his crops, to the exclusion of all others, is an absolute legal right, and an incorporeal property; and incorporeal property is as well the subject of valid sale and mortgage as any other kind of property. The mortgagor, in this case, was the proprietor of the land on which he proposed to raise the crop in controversy. The crop had a potential existence, because it was to be the natural product and expected increase of the land then owned and occupied by him. Why may he not obtain the credit necessary to make the crop by executing a mortgage upon it? We see no sound reason why. Who is to be injured by it if the transaction is bona fide, and there be no superior lien for rent or otherwise? Who is to be misled by it if the transaction is at once published to the world by registration, as was done here? If the merchant is willing to furnish him with supplies, and enable him to make the crop, and take the risk of the crop itself for security, who has a right to complain, and where is the mala fides of the transaction? Is there any doubt that a court of equity would sustain the mortgage, and protect the mortgagee, in such a transaction? Then, wherefore must he fail in a court of law, into which forum the parties have brought the case, and where our liberal statute requires that, in such a case, their rights shall be adjusted upon equitable principles. In the case of Andrews vs. Newcomb, above cited, it is said that, as long as the time of Ch. J. Hobart, it was held that one proposing to plant crops might convey them in advance, and that the fruits which should arise afterward would pass as soon as they were extant; (citing Hob. 132; 3 Johns, 216, and Hare vs. Celay, Cro. Eliz. 143.) Crops to be raised, say the Court, are an exception to the general rule, that title to property not in existence cannot be affected so as to vest the title when it comes into being. In the case of crops to be sown, it vests potentially from the time of the

executory bargain and actually as soon as the subject arises. (52 N. Y. 421.) The judgment, in this case, certainly created no lien upon the crop, which the statute protected from levy until after maturity. The judgment debtor had failed with his title, and the judgment creditor could stand on no higher ground than his debtor. We hold the assignment to be lawful and valid, and that the plaintiff below has the better right to the fund in controversy. Affirm the judgment. Judgment affirmed. Wyatt vs. Watkins.

SUPREME COURT OF WISCONSIN.

January Term, 1877.

WITNESSING WILL-CONSTRUCTION OF STATUTE.

WITNESSING WILL-CONSTRUCTION OF STATUTE-DISCUSSION OF POWER OF COURT.-1. A person witnessing a will must sign it in the actual presence of the testator, so that the testator, if he desire, may see the act of signing. 2. Courts can only declare what the law is; they have no power to make it what it ought to be.

There is no controversy as to the material facts. A few hours before his death, the deceased requested one Watson to write his will, and thereupon Watson wrote the instrument in question-the words of it being dictated by the deceased-read it over to him, and he signed it in the presence of Watson alone. Watson then asked if he should sign it. The deceased made no response, but called his brother, George H. Downie, and requested him to witness a paper. George then signed the instrument in question, in the imme diate presence of the deceased, and Watson put the instrument in his pocket. After affixing his signature George went into the adjoining room, to which Watson followed him a few moments later. Here George asked Watson if he signed it, and Watson replied he had not. George then remarked that a will requires two witnesses, and went into the room where deceased was and asked him if Watson "witnessed the paper." Deceased said he had. George thereupon returned to the adjoining room, told Watson what deceased had said, and advised him to witness the instrument, and he did so. Watson affixed his name to the instrument in the room adjoining that in which the deceased was, and the latter could not see the act of signing from the bed on which the deceased was lying. Watson then went into the other room, sat on the bed of the deceased with the instrument in his hand, and said to deceased that he had signed, as he supposed, in accordance with his wishes, and deceased replied that it was all right.

LYON, J.

There can be no doubt that when the deceased signed the instrument propounded as his last will and testament, and when the signatures of his brother George and Watson were appended to it, he was of sound disposing mind and memory. Neither is there any reason to doubt that the instrument expresses his real intention in regard to the disposition of his property after his death; and the record discloses no ground for suspecting that any injustice would be

done to his heir-at-law, should the instrument be established as his last will Indeed, the case is singularly free from those extraneous circumstances, often present in such cases, which force the mind, however reluctantly, to contemplate possible wrong and injustice as the result of applying in its integrity a given rule of law. In such cases, impelled by what has seemed to them a persuasive justice, and with an exalted sense of the obligations which the deceased owed to his relatives or others, the courts have sometimes strained the law to make a will what it ought to be, rather than to execute the will of the testator as he made it. And so, likewise, wills have been denied probate, or admitted thereto, on grounds which would not have prevailed had the specific provisions of the instrument been regarded. Such cases have tended to unsettle otherwise well settled rules, and have furnished many illustrations of the legal proverb, "hard cases make bad law."

The statute we are to interpret is as follows: "No will made within this State, except such noncupative wills as are named in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge, or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator, by two or more competent witnesses." R. Stat. chap. 97, § 5.

The question presented by the appeal is, did Watson subscribe the instru ment propounded as the last will and testament of Timothy C. Downie, in the presence of said Downie, within the meaning of the statute?

The provision of our statute, which makes it essential to the validity of a will that it shall be attested by witnesses in the presence of the testator, is taken from the English statute of 29 Car. II., chap. 3, § 5, which has also been adopted without material change (except as to the number of witnesses required) in most of the States of the Union.

The learned counsel for the respondent concedes that the English courts have uniformly held that unless the instrument be subscribed by the attesting witnesses in the conscious presence of the testator-that is, unless he may, if he choose, see the act of subscribing-it is not a subscribing in his presence within the meaning of the statute. An exception to this rule is made of necessity in case the testator is blind; but in such case it is held that the subscribing must be where the testator could see the act if he were not blind.

Many cases in this country asserting and applying the same rule are referred to in the brief of the learned counsel for the appellant. Thus we find an over. whelming weight in favor of the English rule-so overwhelming that as able and independent a jurist as was Judge Redfield was constrained to yield to it, although he believed the rule unsound.

But the learned counsel for the respondent argued with great force against the rule, and eloquently appealed to us to overthrow it in this State, and establish the more just and reasonable rule for which he contended. We have been prompted in consequence to consider with much care whether this is a casc which will justify us in overthrowing a specific rule of statutory construction, established and upheld by such great weight of authority. We do not see our way clear to do so. We may concede that the rule is unsound in principle, still it is a rule affecting the descent and testamentary disposition of property,