Phillips (Md.) 384 Railway Co., Ohio Valley Elec tric v. Scott Southern, Dean v. ....... Stamatopoulos, Stephano Bros. V. (Ky.) 1038 (C. C. A.) 1157 (Miss.) 346 Standard Asphalt & R. Co. v. Texas Building Co. (Kan.) Southern, Holloman v. (N. C.) 416 Standard Brewing Co. v. Weil (Md.) Stannard, Atchison, T. & S. F. Southern, Hightower v. (Ga.) Railways & E. Co., United, v. Rampon v. Washington Water 481 490 929 Power Co. Ratcliffe, Re R. Co. v. (Kan.) 1124 (Vt.) 350 Rathskeller Co., United Iron Anderson (Mo.) 130 Works v. (Or.) 1162 Raymond Light & W. Co., Ray ex rel. St. Paul v. Chi mond Lumber Co. v. Raymond Lumber Co. v. Raymond Light & W. Co. v. Davis (W. Va.) 639 v. Haffer (Wash.) 610 (Iowa) 455 Re McAllister (Mo.) 60 Ratcliffe (La.) 188 ex rel. Brewster v. Knapp Vance (Cal.) 479 (Kan.) 1034 Williams Roberts v. Roberts (Minn.) 1140 v. Stevens Ross v. Sanderson Rossman v. Georgia Railway & v. United States Trust Co. P. Co. (Ga.) 483 Rumpf, Neill Co. v. S. St. Paul, State ex rel., v. Chi cago, M. & St. P. R. State Nat. Bank v. Ladd Stephano Bros. v. Stamatopoulos Stephens, Mutual Life Ins. Co. v. (Okla.) 1176 (Kan.) 4 (C. C. A.) 1157 (N. Y.) 809 (Or.) 944 Salomon v. North British & M. Stevens, State v. Stratford, The v. Seattle Brew Sanderson, Ross v. Co. Scott v. Ohio Valley Electric R. Scriven v. Lebanon Sturtevant Co. v. Fidelity & D. Seattle Brewing & Malting Co., The Stratford v. (Wash.) 931 Co. (Wash.) 630 (Ala.) 597 ...... (Me.) 925 Security Mut. L. Ins. Co., Stan Co. v. Keahey ... (Okla.) United States Trust Co., State v. (Kan.) v. Hamburg-Amerikanische Packetfahrt Actien Gesellschaft ... (C. C. A.) 1103 Wisconsin Brick Co. v. National United States Bond & Mortg. ...... (Wis.) Surety Co. 829 Woodburn v. Public Service Com. ber Co. (Idaho) 328 Williams, Re 912 (Or.) 98 975 Woodward v. Western Canada Colonization Co. (Minn.) 270 LAWYERS REPORTS ANNOTATED NEW SERIES. KENTUCKY COURT OF APPEALS. GEORGE CHEATHAM, Appt., V. ment that the landlord should be reimbursed and paid out of the crop; the tenant being in possession of the leased premises and engaged in the performance of his VICTOR L. KELLEY, Assignee of John R. contract of tenancy, the tobacco seed having Tennell. A' (May 30, 1916.) PPEAL by plaintiff from a judgment of the Circuit Court for Nelson County in favor of defendant in an action brought to enforce a lien on a crop of tobacco. Reversed The facts are stated in the opinion. Mr. Redford C. Cherry, for appellant: A mortgage is valid which was executed by a tenant to the landlord upon a crop of tobacco to secure certain sums advanced by the landlord to the tenant under an agreeNote. As to sale or mortgage of future and growing crops, see annotation following First Nat. Bank v. Cazort & McG. Co. post, 8. been sown in beds on the leased premises, and having germinated and commenced to grow in the form of plants, but the plants, at the time of the execution and delivery of the mortgage, not having been transplanted into the field. Hutchinson v. Ford, 9 Bush, 318, 15 Am. Rep. 711; Dickey v. Waldo, 97 Mich. 255, 23 L.R.A. 449, 56 N. W. 608; Haden v. Lindsay, 17 Ky. L. Rep. 1409, 34 S. W. 1065; 27 Cyc. 1141; Central Trust Co. v. Kneeland, 138 U. S. 414, 34 L. ed. 1014, 11 Sup. Ct. Rep. 357; Stearns v. Gafford, 56 Ala. 544; Ludlum v. Rothschild, 41 Minn. 218, 43 N. W. 137; Page v. Larrowe, 51 N. Y. S. R. 35, 22 N. Y. Supp. 1099; Cudworth v. Scott, 41 N. H. 456; Jones v. Webster, 48 Ala. 109; Russell v. Stevens, 70 Miss. 685, 12 So. 830; Arques v. Wasson, 51 Cal. 620, 21 Am. Rep. 718. In equity, not only rights and interests absolutely fixed and in esse are assignable, but contingent interests and expectancies. Mitchell v. Winslow, 2 Story, 639, Fed. Cas. No. 9,673. Whenever parties by their contract in clear terms express an intention to create a positive lien upon personal property not then owned, but afterwards acquired, and the transaction is free of fraud, the rights thus obtained will be upheld; and with reference to contracts of tenancy, the mortgage on crops takes effect when they come into existence. Ludlum v. Rothschild, 41 Minn. 218, 43 N. W. 137; Walter A. Wood Mowing & Reaping Mach. Co. v. Minneapolis & N. Elev. Co. 48 Minn. 404, 51 N. W. 378; Loftin v. Hines, 107 N. C. 360, 10 L.R.A. 490, 12 S. E. 197; Wheeler v. Becker, 68 Iowa, 723, 28 N. W. 40; Miller v. McCormick Harvesting Mach. Co. 35 Minn. 399, 29 N. W. 52; Henderson v. Gates, 52 Ark. 371, 12 S. W. 780; Johnson v. Grissard, 51 Ark. 411, 3 L.R.A. 795, 11 S. W. 585; Woodlief v. Harris, 95 N. C. 211; Comer v. Lehman, 87 Ala. 362, 6 So. 264; Taylor v. Hodges, 105 N. C. 344, 11 S. E. 156. Tennell's assignee has no right or defense superior to that of Tennell himself, and the creditors of Tennell could make no defense that he or his assignee could not make. sions of the value of $95 to enable him to subsist while raising the crop, and this amount, together with the $413 previously advanced Tennell, was all that was actually advanced by Cheatham to him; and so to the extent of $92 the $600 note was without consideration, and as to this sum there is no controversy between the parties, nor is there any dispute as to the right of Cheatham to have a lien for the $95 furnished to Tennell after the tobacco had been planted. In December, 1914, Tennell made a general deed of assignment for the benefit of his creditors to Victor L. Kelley, and under the deed of assignment the assignee, Kelley, took possession of Tennell's one-half interest Manly v. Bitzer, 91 Ky. 598, 34 Am. St. A crop of tobacco has neither an actual nor a potential existence before the plants are transplanted or set in the ground, and a mortgage of a crop of tobacco to be grown on the land before it is planted is void. Hutchinson v. Ford, 9 Bush, 318, 15 Am. Rep. 711; Haden v. Lindsay, 17 Ky. L. Rep. 1409, 34 S. W. 1065; Barnard v. Eaton, 2 Cush. 294; Bank of Lansingburgh v. Crary, 1 Barb. 542; Comstock v. Scales, 7 Wis. 159. premises and which had not been sold at this time. Under an agreement between the parties the tobacco taken possession of by the assignee was to be sold and the proceeds held until it was determined whether the tobacco taken possession of by the assignee should go to Cheatham under his mortgage to satisfy the note less $92, or to the assignee under the deed of assignment. In this controversy Cheatham insists that by virtue of his mortgage he had a lien on the tobacco superior to the claim of the assignee, Kelley. And it is further urged in behalf of Cheatham that, although he might not be entitled to a lien strictly by virtue of his mortgage, in any event he had an equitable lien which was superior to the right The equitable doctrine that a mortgage attaches to after-acquired property applies only where such property had either an actual or a potential existence at the time the mortgage was executed. Wilson v. Seibert, 8 Am. L. Reg. N. S. of the assignee. On the other hand, the 608. contention of the assignee is that the mortgage executed by Tennell to Cheatham did Carroll, J., delivered the opinion of the not give him any lien on the tobacco, except court: In January, 1914, the appellant, George Cheatham, rented land to John Tennell, to be cultivated in tobacco. Under the contract of leasing one half of the tobacco grown was to be Tennell's and the other half was to be Cheatham's. In February, 1914, Tennell sowed on the leased land a tobacco bed for the purpose of raising plants with which to set out the 15 acres in tobacco that was to be grown under the rent contract. On March 23, 1914, Tennell executed to Cheatham, his landlord, a note for $600, and also a mortgage on his interest in the crop of tobacco to be grown and cultivated on the farm of Cheatham during the year 1914; $413 of the $600 note was made up of claims of Cheatham against Tennell in existence at the time of the execution of the note and mortgage, and the balance of the $600 was to be furnished by Cheatham to Tennell from time to time as it might be needed by him in cultivating the crop. It appears, however, that during the tenancy, and after the tobacco crop had been planted, Cheatham only furnished to Tennell provi to the extent of $95, because at the time of the execution of the mortgage the tobacco was not in existence, as it had not been planted. Upon these facts the lower court ruled that Cheatham had a lien superior to that of the assignee to the extent of the $95 which had been furnished to Tennell under the lease contract, and as a part of the $600 note secured by the mortgage for the purpose of enabling Tennell to subsist while raising the crop, but that as to the $413 due on the note Cheatham had no lien on the tobacco, because it was not in existence when this part of the indebtedness embraced in the note was created. Following this judgment, Cheatham filed the record in the clerk's office of this court, and prayed that an appeal be granted and the judgment of the lower court reversed. Taking up first the issue as to whether under and by virtue of the mortgage alone, aside from any equitable rights growing out of the transaction, Cheatham had a lien on the tobacco to the extent of $413 superior to the claim of the assignee, we find this |