Van Hoozer v. Cory. ered; and that the mortgagor should from time to time, on the demand of the mortgagee, execute and deliver to him such chattel mortgage or mortgages as might be necessary to perfect and perpetuate the lien until the purchase money should be fully paid in, &c.; and it was held that this was a valid agreement, and although it could not take effect until the wood should be cut and severed from the freehold, yet it attached instantly as the wood became personal property, and that it should be enforced against the mortgagor and all persons claiming from or through him with notice of the lien thus created. It is true it was enforced as an equitable lien on the foreclosure of the mortgage, but it was established as a lien created by the contract and agreement of the parties, and the property then only potentially in existence as personal property was treated as the proper subject of a contract which gave the plaintiff a vested interest in it as soon as it came into existence. The agreement in the case before us is clearly distinguishable from that in either of the cases cited from the Massachusetts Reports, (Butterfield v. Baker, 5 Pick. 522; Munsell v. Carew, 2 Cushing, 50.) In neither case was the transfer absolute. In the case last cited the agreement was that in case of default in the payment of the rent the lessor was to have all the crops &c. to dispose of as he saw fit. The property had been taken before default in the payment of the rent. Wilde, J. very properly says, "At that time the lessee had neither the property, nor the possession, nor the right of possession in the produce taken; and if he afterwards had acquired the right of property that would not avail him in this action." He held the clause in the lease to be rather an executory contract or license to dispose of the crops and produce for the payment of the rent, and not a sale of the whole produce. In Butterfield v. Baker the agreement was that the crops should be held for the rent of the farm, and that the lessor might enter to take the same for rent that should. be in arrear, &c.; and it was held that it did not amount to an absolute sale or mortgage, but a contract to be completed Van Hoozer v. Cory. by a delivery in order to affect creditors and bona fide purchasers. In that case no rent was due at the time of the seizure by the defendant. In the case in hand the products and crops were to be and remain to be the property of the plaintiff until the rent should be paid. The transfer was absolute, and attached to the crops and products of the dairy as they came into existence, and could only be divested by the payment of the rent for the current year. This transfer gave the plaintiff the right of immediate possession, not only against the lessee but against all claiming through or under him. (See also Lewis v. Lyman, 22 Pick. 437.) Taking the whole contract together, it was evidently the design that the property in the products of the farm should be in the plaintiff, and not in the lessee, until the payment of the rent. The contract as thus interpreted is not illegal or unreasonable. In the view taken of the contract, and of the character of the property affected by it, and the power of the lessor to give title to it, the case is not within the rule which prohibits the selling or mortgaging property not in existence or not owned at the time by the vendor or mortgagor. Milliman v. Neher, (20 Barb. 37,) was more like the Massachusetts cases cited, and Bockes, J. says, "Besides, I am of the opinion that the terms used, that the plaintiff should have a lien on the crops as security, do not import a sale or mortgage. A mortgage is a conditional sale. This clause of the lease contains no words of sale, nor any from which a sale can be implied." In Cayun v. Eutts, (10 Exch. 298,) it was decided that a power to seize and take possession of crops thereafter to be grown, as security for a debt, did not vest a title to the property until an actual seizin and possession under the power ;also clearly distinguishable from this case. I am of the opinion that the judgment should be affirmed. MULLIN, J. concurred. MORGAN, J. dissented. [ONONDAGA GENERAL TERM, October 2, 1860. Allen, Mullin and Morgan, Justices.] ST. PAUL'S CHURCH IN SYRACUSE VS. FORD and POMEROY. The owner of a pew in a church is not liable in personam, in respect to an assessment thereon, unless there be some special ground from which to infer a contract and promise to pay. The interest in a pew, created by a lease in perpetuity, is an interest or estate in realty, and the lessees or pew owners take the title of their pews as real property with all its incidents. Where a lease of a pew is executed to several persons they are tenants in common of the pew, under their lease, having several and distinct freeholds, and each being solely and severally seised of his share. Neither of them can bind the other by an agreement in respect to the common property, but any one can charge his separate and several estate, or can convey it, or mortgage it, or become personally liable upon an undertaking respecting it. Where several persons, who were tenants in common of a pew, signed a paper by which they covenanted and agreed to and with the church that a former appraisal of the value of such pew should be superseded, and that the wardens and vestry, &c. might make a reappraisal of the value of said pew to any sum not exceeding $450, and that the pew should be subject to the same annual tax or assessment that it was then liable to; in pursuance of which stipulation the pew was reappraised at $275; Held, in an action against all the owners of the pew, to collect an assessment made upon such reappraisal, that neither of the signers of the paper became jointly bound with, or as surety for the others, nor did any one of them charge his share of the pew for another owner's portion of the tax or assessment; and that consequently a joint action could not be maintained against all the pew owners. A CTION to recover against the defendants, jointly, $55, as pew rent on an assessment upon pew No. 18 in the plaintiffs' church, valued on making the assessment at $275. The action was tried before ALLEN, J. and a jury, at the Onondaga circuit, in June 1860. On the trial the plaintiff gave evidence of its incorporation, and proved a lease of pew No. 18 to the defendants, dated June 7th, 1852, in consideration of $100 and subject to an annual assessment of not exceeding twelve per cent upon the amount of such considation, for the current expenses of the parish, which assessment the defendants covenanted to pay. In November, 1856, the defendants severally and at different times, with other pewholders in the church, signed an agreement as follows: St. Paul's Church v. Ford. "For a valuable consideration to me in hand paid by St. Paul's Church in Syracuse, the receipt whereof is hereby acknowledged, I do hereby covenant and agree to and with said St. Paul's Church in Syracuse, that the former assessment of the value of my pew or pews therein be superseded, and that the wardens and vestry of said church, or any committee by them appointed for that purpose, may make a reappraisal of the value of my said pew or pews herein, to any sum not exceeding $450 on each pew as shall be thought just and equitable, for the purpose of increasing in a just and equitable manner the annual income of said church, the present income being entirely inadequate to the wants thereof, and that said pew or pews be subject to the same annual tax or assessment that the same now is or are for the purposes aforesaid." The pew of the defendants was reappraised at $275 in pursuance of this stipulation, and the amount claimed in this action was the assessment upon this reappraisal. Upon the trial the objection was taken by the defendants that if liable at all, their liability was several and not joint, and that a joint action could not be maintained against them, and the point was held to be well taken, and the plaintiff was nonsuited; to which the plaintiff excepted, and upon a bill of exceptions, pursuant to leave given, now moved for a new trial. R. Rayner, for the plaintiff. B. Davis Noxon, for the defendants. By the Court, ALLEN, J. The action is brought upon the instrument or agreement of November, 1856, and not upon the original lease and the covenant contained in it. No assessment or tax has been made upon the pew at the valuation in the lease, but all the proceedings for the assessment, as well as for its collection, have been under the supplemental agreement. A very serious question arises whether the deVOL. XXXIV. 2 St. Paul's Church v. Ford. fendants are either severally or jointly liable personally for any assessment upon the reappraisal of the pew under the agreement of 1856. In the assessment provided for by the lease they were personally liable upon their express covenant to pay. But the agreement of 1856 contains no covenant or promise of any kind. It is a mutual consent to give up the old appraisal, and that a new appraisal may be made, and that the pews be subject to an annual tax or assessment upon the amount at which they should be appraised. The signers do not agree that they will be subject to such assessment in respect to the pews, or promise to pay any such assessment. Neither is it an alteration of the terms of the lease or an agreement to reform the lease or engraft the new appraisal upon it. It may well be that the pew holders may be willing to subject their pews to the enhanced lien when they would not be willing to bind themselves and their heirs perpetually to its payment. A pew owner is not liable in personam unless there be some special ground from which to infer a contract or promise to pay. (First Pres. Congregation in Hebron v. Quackenbush, 10 John. 217.) The express covenant in the lease, the absence of it in the substituted agreement, and the special provision for charging the pews is evidence entitled to some consideration that the defendants did not intend to undertake personally for the payment of the assessment. But the question made at the circuit and presented by the bill of exceptions is as to the joint liability of the defendants, if liable at all. The interest in a pew created by a lease in perpetuity, like that to the defendants, is an interest or estate in realty, and the lessees or pew owners take title of their pews as real property, with all its incidents. (Baptist Church in Ithaca v. Bigelow, 16 Wend. 28. Shaw v. Beveridge, 3 Hill, 26. Vielie v. Osgood, 8 Barb. 130.) The defendants were tenants in common of the pew under their lease, and they had several and distinct freeholds. Each was solely and severally seised of his share. (4 Kent's Com. 367, 8.) Neither could encumber the estate of the other, or |