the land is the mother and root of all fruits. Therefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant, as 21 Hen. VI. A parson may grant all the tithe wool that he shall have in such a year; yet perhaps he shall have none; but a man cannot grant all the wool that shall grow upon his sheep that he shall buy hereafter; for there he hath it neither actually nor potentially. And though the words are here not by words of gift of the corn, but that it shall be lawful for him to take it to his own use, it is as good to transfer the property; for the intent and common use of such words, as a lease without impeachment of waste, for the like reason, and not ex vi termini, gives the trees.

ARQUES v. WASSON.

(Supreme Court of California. 1877. 51 Cal. 620, 21 Am. Rep. 718.) CROCKETT, J. The action is replevin to recover from the sheriff certain grain and flax seed seized and sold by him under an attachment and execution against one Hansen. The findings show that Hansen leased from the plaintiffs a parcel of land, and from one Reed an adjoining parcel, of both of which he was in possession under the leases; that to secure the rent to be paid to the plaintiffs, and also a store account which he owed them, he duly executed and delivered to them a mortgage (which was duly recorded), upon all the crops of every kind to be produced on said lands during the next ensuing cropping season; that at the date of the mortgage Hansen was in possession of the land, but had not then plowed it or sowed the seed, but proceeded to do so very soon thereafter and produced the crop which is in controversy; that when the crop had matured and had been partially harvested, it was seized by the defendant as sheriff, under an attachment at the suit of another creditor of Hansen, and was subsequently sold by the defendant under an execution issued upon the judgment in said action. The plaintiff recovered and the defendant appeals.

The point chiefly relied upon for a reversal is, that at the date of the mortgage the crop had not even a potential existence, the ground not having been plowed or the seed sown; and it is claimed that there can be no valid mortgage of a thing not in esse. It is conceded by counsel that if the thing has a potential existence, as, for example, wool to be grown from sheep then belonging to the mortgagor, or butter to be thereafter produced from his cows, or a crop arising from seed already sown, the mortgage would be valid. The general rule undoubtedly is that a person cannot convey a thing not in esse, or in which he has no present interest. But it is quite as well settled, that if the thing has a potential existence it may be mortgaged or hypothecated. "If one, being a person, give to another all the wool he

* * *

shall have for tithes the next year, this is a good grant, although none may arise, for the tithes are potentially in the person. So one may grant all the wool of his sheep for seven years; but not of the sheep which he shall thereafter purchase."-Van Hoozer v. Cory, 34 Barb. (N. Y.) 12, and authorities there cited. "Land is the mother and root of all fruits. Wherefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant." Grantham v. Hawley, Hob. R. 132. In Van Hoozer v. Cory, supra, the court holds that "the same principle is adjudged applicable to the annual crops, the fruit of the annual labor of the lessee, as if a lessor covenants that it shall be lawful for the lessee, at the expiration of the lease, to carry away the corn growing on the premises, although by possibility there may be no corn growing at the expiration of the lease, yet the grant is good, for the grantor had such a power in him, and the property shall pass as soon as the corn is extant." So there may be a valid grant of the grain that a field is expected to grow. 1 Parsons on Cont. 523; McCarty v. Blevins, 5 Yerg. (Tenn.) 195, 26 Am. Dec. 262. In Van Hoozer v. Cory, supra, the grant was of the cheese expected to be made from the cows of the grantor, and "the products expected to be raised upon the premises then demised to the grantor"; and this was held to be a valid grant. In that case the question involved here was carefully considered by the court upon a full examination of the authorities, and we are satisfied with the conclusion to which it arrived. But the same question arose in the later case of Conderman v. Smith, 41 Barb. (N. Y.) 404, in which the ruling in Van Hoozer v. Cory was approved; and Johnson, J., in delivering the opinion of the court, said: "That case (Van Hoozer v. Cory) like this, was an action by the lessor and purchaser, against a creditor of the lessee, who had taken and sold the products of the farm and dairy upon execution; and the court held that it did not fall within the rule which prohibits the selling or mortgaging of property not in existence, or not owned by the vendor or mortgagor. It was the product of property which the vendor owned at the time, and was, as it is expressed in the books, potentially his, and, therefore, the subject of sale." On the rule established in these cases, the crop mortgaged to the plaintiffs had a potential existence, and the mortgage was valid.

Judgment and order affirmed.

Mr. Chief Justice WALLACE and Mr. Justice MCKINSTRY dissented.

5 In holding that the doctrine of potential possession applies to a manufactured product, such as cheese, this decision, says Williston, "stands alone, and must be regarded as questionable." Sales (2d Ed.) § 134, note. Compare Langton v. Higgins, 28 L. J. Ex. 252 (1859).

6 In Shaw v. Gilmore, 81 Me. 396, 17 Atl. 314 (1889), the court said: "The sale, however, can only operate upon a specific thing, as the grass of a particular field during a specified time that the grantor owned the right to cut and gather it in. In the present case, the grant purports to be of

BATES v. SMITH.

(Supreme Court of Michigan, 1890. 83 Mich. 347, 47 N. W. 249.)

LONG, J. This is an action of trover to recover the value of onehalf interest in a colt. The claim of the plaintiff is that he bred the mare of one James Fraser upon shares. The contract as stated by the plaintiff is that Fraser came to his farm, and said he wanted to breed his mare to the stallion American Boy, then kept by plaintiff, and that he had no money; that plaintiff then told him he would breed the mare on shares, and, if Mr. Fraser would come to him at any time within two weeks and give him $50 for the services of the horse, Fraser could have his (the plaintiff's) half-interest in the colt; that the mare was then and there bred under that arrangement, but no written contract was made. James Fraser was called as a witness for the defendant upon the trial, and testified: "My bargain with plaintiff that, if I did not pay plaintiff fifty dollars within three months, for the service of the stallion, he (plaintiff,) was to own a half-interest in the colt." On cross-examination he states the arrangement substantially as claimed by plaintiff, except that he was to have three months in which to pay the money. It appears that the mare was bred July 27, 1888, and that the defendant purchased her from Fraser on February 21, 1889, paying therefor the sum of $300.

Defendant upon the trial stated that at the time he purchased the mare he had no knowledge that the plaintiff made any claim to her progeny, and that plaintiff never made any claim until the colt was four or five months old. It appeared, however, that before defendant bought the mare he was informed that Fraser had bred to the stallion American Boy then kept by plaintiff, but was not advised that any contract was made by which the plaintiff was to have a half-interest in the colt. Demand was made before suit was brought, and the defendant refused to recognize the plaintiff's interest. Under these facts, the plaintiff's counsel requested the court to instruct the jury that Fraser could not sell the interest of plaintiff in the colt, and that the colt when foaled was the property in common of the plaintiff and defendant, and that the value of the one-half interest could be recovered in this action. This the court refused, and instructed the jury that if at the time the defendant purchased the mare from Fraser he had no knowledge of the arrangement made between plaintiff and Fraser, the title to the colt would pass to the defendant, but that if

the yearly crop of hay for an indefinite period of time. The controversy is over the fifth crop, sold by the assignor, who was in possession of the same, to a bona fide purchaser. Under the rules of the common law, the conveyance must be held inoperative as to the hay in dispute and, therefore, the plaintiff's title to the same fails."

In some states the statute invalidates mortgages made more than a specified time before the planting of the crop. See Williston, Sales (2d Ed.) § 135.

he did have knowledge of it, the title would not pass. The jury found a verdict in favor of defendant. Plaintiff brings error.

It is contended by plaintiff's counsel that the defendant was not in any sense a bona fide purchaser of the colt, but that, if he were, he could acquire from Fraser only his half-interest therein. It is a general rule that owners in common of property have a right to dispose of their own undivided shares, but such owner cannot sell the whole property, nor any portion thereof except his own; and, if he undertakes to dispose of any larger interest his co-owners are not bound thereby. Russell v. Allen, 13 N. Y. 173. The principle is well settled that a seller of personal property can convey no greater title than he has, and it makes no difference that the purchaser has, no notice and is ignorant of the existence of the other parties in interest. Couse v. Tregent, 11 Mich. 65; Dunlap v. Gleason, 16 Mich. 158, 93 Am. Dec. 231; Tuttle v. Campbell, 74 Mich. 660, 42 N. W. 384, 16 Am. St. Rep. 652.

Did the contract, however, which plaintiff claims he made with Fraser convey to him one-half interest? The property upon which the contract was to operate had no potential existence. The mare at that time had not been bred, and it was uncertain that, when bred, she would be put in foal. There was nothing in existence which could be the subject of sale. It is essential to the validity of every executed contract of sale that there should be a thing or subject-matter to be contracted for. And if it appears that the subject-matter of the contract was not, and could not have been, in existence at the time of such contract, the contract itself is of no effect, and may be disregarded by either party. Strickland v. Turner, 7 Exch. 208; Hastie v. Couturier, 9 Exch. 102, 5 H. L. Cas. 673; Franklin v. Long, 7 Gill & J. (Md.) 407. A mere possibility or contingency, not founded upon a right, or coupled with an interest, cannot be the subject of a present sale, though it may be of an executory agreement to sell. Purcell v. Mather, 35 Ala. 570, 76 Am. Dec. 307; Low v. Pew, 108 Mass. 347, 11 Am. Rep. 357. Though the subject-matter of the agreement has neither an actual nor potential existence, such an agreement is usually denominated an executory contract, and for its violation the remedy of the party injured is by an action to recover the damages. Hutchinson v. Ford, 9 Bush (Ky.) 318, 15 Am. Rep. 711; Pierce v. Emery, 32 N. H. 484.

Again, it may be said that, where one of two innocent parties must suffer by the fraud of another, he shall bear the loss who by his conduct has enabled such third party to perpetrate the fraud. If the contract was made as claimed by the plaintiff, and there does not seem to be much controversy on this point, yet, the plaintiff had it in his power to protect himself, under the provisions of Act No. 280, Pub. Acts, 1887. This act provides that the owner or keeper of a stallion shall, after demand upon the owner of the mare for the price agreed

upon for service, have a lien upon the get of such stallion for the period of six months after the birth of the foal, for the payment of the services of such stallion. In order, however, to perfect such lien, he must file with the township clerk in the town where such dam is owned the agreement or a true copy of such agreement entered into by the owner of the dam for such services, together with the description of such dam as to age, color, or other marks as the person filing such agreement is able to give. This filing is to operate, under the provisions of this act, as a chattel mortgage, and may be enforced in the same way. No such steps were taken. The mare remained in the possession of the owner, Mr. Fraser, from the time she was bred until in February following, when the defendant purchased her without any notice, so far as this record discloses, of the agreement made between plaintiff and Fraser.

It is shown that defendant was advised at the time he purchased that the mare had been bred to American Boy, but no notice was given him that plaintiff had any claim on the foal, and there was nothing upon the record in the town-clerk's office to give him any notice that plaintiff claimed a lien upon or had any interest in the foal. It cannot be said that the mere fact of notice of the breeding of the mare to American Boy was sufficient to put him upon inquiry as to any rights the owner of the stallion might have. The defendant must be regarded as a bona fide purchaser and owner of the mare; and, the title and ownership of the foal following the dam, he was the rightful. owner of the foal.

We see no error in the case, and the judgment must be affirmed, with costs. The other justices concurred."

LOW et al. v. PEW et al.

(Supreme Judicial Court of Massachusetts, 1871. 108 Mass. 347, 11 Am. Rep. 357.)

Replevin by the firm of Alfred Low & Co. of a lot of flitched halibut from the assignees in bankruptcy of the firm of John Low & Son, all of Gloucester. Writ dated August 24, 1869. The parties stated the following case for the judgment of the court:

On April 17, 1869, as the schooner Florence Reed, owned by John Low & Son, was about to sail from Gloucester on a fishing voyage, that firm received $1,500 from the plaintiffs, and signed and gave the plaintiffs the following writing:

"We, John Low & Son, hereby sell, assign, and set over unto Alfred Low & Company all the halibut that may be caught by the master

7 See Sales Act, § 5, and Sale of Goods Act, § 5, neither of which provides for any exception to the general rule that what purports to be a sale of future goods operates as an agreement to sell. See, also, note, 10 Cal. Law Rev. 352.