The nursery stock was personal property and not real estate. It consisted- of trees, plants and shrubs planted by tenan for the purposes of trade, and to be removed and sold when ready for the market. (King v. Wilcomb, 7 Barb., 263; Green v. Armstrong, 1 Denio, 550; Smith v. Jenks, id. 580; S. C., Jencks v. Smith, 1 Comst., 90; Hamilton v. Austin, 36 Hun, 138, 112.) The tenants held by *54.virtue, of a lease from defendants under seal for a term of five years from September 16,1876, with a right to an extension of two or three years on lands planted to currants and raspberries. The tenant owned as against the landlord raspberries, etc., planted under such lease. November 25, 1878,. the tenants, then in possession of and so owning said nursery stock, mortgaged the same to the plaintiff to secure him against his indorsement of their notes for $600 due in about two months. The mortgage was duly filed. In February, 1879, proceedings were begun by defendant to dispossess the tenants for non-payment of rent due. After a contest possession was awarded the defendants and a -warrant issued March 5, 1879, but never served upon the tenants. While the tenants were still in possession and about March 14, 1879, the plaintiff claimed the property under his chattel mortgage of defendant, Eli- T. Bangs, who promised plaintiff that he might take up the property in the spring when the frost was out of the ground so it could be done. Plaintiff about the 1st of April, 1879, foreclosed his mortgage and bid in the property. When he went for the property the latter part of April the defendant refused to give it up. The respondents claim that the lease operated as a chattel mortgage in favor of defendants for any unpaid rents, but if so it was never filed, nor had plaintiff any notice of it. He was a mortgagee in good faith.
The chattel mortgage given by the tenants to plaintiff worked a severance from the real estate, and after default the absolute title became vested in plaintiff, who became entitled to enter upon the land and remove his personal property, there being, with as little injury to the defendants as was possible. (King v. Wilcomb, supra, and other cases; Wintermute v. Light, 46 Barb., 278; Bank of Lansingburgh v. Crary, 1 id., 548.) The defendants had acquired no title to the property as against the plaintiff’s superior title. It may have been otherwise in respect to the tenants whose rights of removal of the property may not have survived the existence of their lease. Whether such lease expired when the warrant for dispossession was issued may well be doubted. (Powers v. Carpenter, 15 N. Y. Weekly Dig., 155; further illustrated in Newell v. Whigham, 102 N. Y., 28.) But we think in no event ought such judgment and warrant to destroy the rights and title which the plaintiff in good faith had acquired in the mortgaged property. He *55was not a party to that proceeding and was not bound by it. Now clearly he ought to have a reasonable time after such removal to enter up and take away the stock. (Moore v. Wood, 12 Abb. Pr., 393.) Nor could the tenants, by their voluntary act of surrender of possession, deprive plaintiff, as mortgagee, of his rights under his mortgage to this property. He could still enter and remove the mortgaged property. (Ombony v. Jones, 19 N. Y., 234; London etc., Loan Co. v. Drake, 6 Com, Bench [N. S.], 796, 809.) We conclude that the nonsuit ought not to have been granted upon the facts shown.
The judgment must be reversed and a new trial granted, with costs to abide the event.
Hardin, P. J., and Follett, J., concurred.Judgment reversed and new trial ordered, with costs to abide the event.