The mortgage by Power to the plaintiff provided, in express terms, that the former should deliver without unreasonable delay all the wood he might cut upon the mortgaged premises upon the line of the New York Central rail road, at the place designated, &o.; and that the plaintiff should have a lien upon all the said wood for the purchase money until the monthly installments should be fully paid, &c. It also provided for a similar lien upon the crops, &c.; and that Power should, from time to time, on demand of the plaintiff, execute and deliver to him such chattel mortgage or mortgages as might be necessary to protect and perpetuate the same, until the nine monthly installments should be fully paid, when the lien should cease and be discharged. There was no necessity for the lien upon the wood until it was severed from the land, as until then it was parcel of the real estate, and the mortgage, without the provision referred to, by which the lien was provided for, would embrace it; and a court of equity, except for the provisions contained in the mortgage, by which the mortgagee consented to the cutting of the wood, would have had power to restrain the mortgagor and a.ll others from cutting it. The mortgagee, however, agreed to the wood being cut and sold to the rail road company ; and in the same agreement, and as a part thereof, it was provided that he should have the lien upon all the wood so cut until the monthly payment's should be made. That was undoubtedly a valid agreement; and although it could not take effect until the wood should be cut and severed from the freehold, yet it would attach instantly, as the wood became personal property by being thus detached from the realty. This, I think, was the essence and spirit of the agreement, and it should be enforced against the mortgagor and all others claiming from and through him, with notice of the *154lien, thus created. (Fidel v. The Mayor &c. of New York, 2 Seld. R. 179, and authorities there cited.)
The agreement for the lien was neither a chattel mortgage nor a sale of chattels, because, at the time it was made, the subject matter of the lien was not in existence as personal property, (Edgell v. Hart, 5 Seld. 213;) and therefore is not affected by the statutes concerning sales and mortgages of chattels. The case shows that the defendant Lester had notice of the prospective lien upon the wood before any of his rights attached, and he therefore was not a bona fide purchaser, but took the wood subject to the prior equitable right of the plaintiff.
The provision that the mortgagor should, at the request of the mortgagee, execute chattel mortgages, &c., if by fair interpretation it was intended to apply to the wood to be cut •—as to which there' may be some question—was, at most, cumulative, and did not, as it seems to me, at all qualify or affect the validity of the lien previously provided for. If the provision for the lien was valid and effectual without the one for the chattel mortgages, it was so with it. It was in the nature of a covenant for further assurance in a deed, which was never held to affect the other covenants or provisions contained in a conveyance.
I cannot agree with my learned brother, who decided this case at the special term, that the provisions in the mortgage respecting the liens, and the giving of chattel mortgages by Power to the plaintiff, was “ a mere agreement for the sale of the personal property by way of mortgage, as an additional security at a future day, at the request of the plaintiff.” By giving the provisions in question this restricted interpretation, it is necessary to lay out of view all that the parties have said in the agreement about the lien, and to treat as surplusage a very important provision, plainly expressed by them. This we have no right to do. It was a provision intended, as I think, to secure to the plaintiff a highly valuable right, without which he would have no security, as respected the wood and crops, except the agreement of the mortgagor to give the *155chattel mortgages, and which, in case Power for any reason saw fit to violate it, by refusing to give the chattel mortgages, would leave the plaintiff at the mercy of Power and his creditors, so far as respected the wood and the crops, upon which the liens were to attach. It was competent for the parties to have made just such an agreement as the special term adjudged was made by them, if they had seen fit to do so—in which case it would have been quite unnecessary to insert the provision which they have inserted—that the plaintiff should have a lien upon all the wood and crops for the purchase money, until the payments in the first condition of the mortgage, the aforesaid monthly payments, should be fully paid; but I think they have in fact made quite a different one, as is entirely plain from the language employed by them, and that is just what they have expressed. It is, first, that the plaintiff should have a lien upon the wood upon its being converted into personal property by severance from the land; and second, and in addition thereto, that Power should execute the chattel mortgages, at the plaintiff’s request, whenever it should become necessary to protect and perpetuate such lien.
[Monroe General Term, March 7, 1859.Welles, Smith and Johnson, Justices.]
As to the grass or hay in question, there is no evidence that the defendant Lester had any notice or knowledge of the plaintiff’s lien thereon before he purchased the same of Power. He must, therefore, be deemed a bona fide purchaser thereof, and permitted to hold it, discharged of the plaintiff’s lien thereon. (Bayley v. Greenleaf, 7 Wheat. 46.)
My opinion, therefore, is, that the judgment should be so modified as to direct the defendant Lester to account for the wood taken by him, with interest from the time of the levy thereon; and that neither party recover costs of this appeal.
Smith, J., concurred.
Johnson, J., adhered to the views expressed in his opinion at the special term.
Judgment modified.