166 BOARD OF AGRICULTURE. [Pub. Doc. 



Mortgages on Growing Crops. 



The giving of mortgages upon growing crops is very com- 

 mon in the south and in some other parts of the country ; 

 and these have been upheld in many of the States, where 

 written instruments have been made, mortgaging crops not 

 yet planted. This seems to be an extreme and liberal ex- 

 tension of the validity of such conveyances. A contract 

 was made in Kentucky in the early spring of 1862 for the 

 sale of a cotton crop not yet planted. The validity of that 

 contract was upheld by the supreme court of the United 

 States, but it was put upon the ground that the law of 

 Kentucky recognized the binding force of such an agree- 

 ment. I suppose that crops may be mortgaged in Massa- 

 chusetts, — that is, crops actually growing in the ground at 

 the time the mortgage is given ; but a mortgage given to-day 

 on the crop of the next year would probably not be sus- 

 tained. Our own supreme court said, as long ago as 1845, in 

 a case arising in Norfolk County, that, although a person can- 

 not grant or mortgage property of which he is not possessed 

 and to which he has no title, still, he may grant personal 

 property of which he is potentially, though not actually, 

 possessed. For instance, one might legally mortgage all 

 the wool that shall grow on the sheep he owns at the time 

 of the grant ; but he could not make a valid mortgage of the 

 wool on sheep not his, and the mortgage would not become 

 valid even if he should afterwards purchase the flock before 

 the wool had been clipped. 



An agreement to sell growing crops, including trees, has 

 been held to be not an ao:reement for the sale of an interest 

 in land, but for the sale of chattels; and so, not being 

 within the purview of the statute of frauds, can be en- 

 forced, unless the value exceeds fifty dollars, or unless there 

 has been a partial delivery of the trees or crops, in which 

 case the delivery of the whole can be enforced. In a case 

 arising in western Massachusetts, in 1841, the owner of land 

 made a contract with a tanner that the latter might enter 

 upon the land, cut certain oak trees, peel and carry away 

 the bark, cutting up and leaving the timber and wood for 

 the owner's benefit. After the trees had been cut and the 



