Whitcomb v. Tower

Dewey, J.

The only question, raised upon these exceptions, is as to the right of the plaintiff to recover for the wool and the lambs, taken and attached by the defendant as the property of Hix and Stafford.

The articles of agreement made between the plaintiff and Hix and Stafford clearly enough indicate the intention of the parties as to the property, and .the wool and lambs vesting in the plaintiff", until the payment of the rent. The only question is, whether such agreement can legally have the effect intended to be given to it by the parties thereto. We think the present not like the case of Butterfield v. Baker, 5 Pick. 522, where an agreement that the future crops should be subject to be taken by the lessor, at all times, for the payment of any rent that might be arrear, was held not to give priority over an attaching creditor; the lessor not having entered upon the premises, and taken possession of the produce, under the stipulation that he might do so for rent in arrear. Such entry and taking possession were there necessary to vest the property in the lessor. The present case falls more properly within the principles of the cases of Lewis v. Lyman, 22 Pick. 437, and Barrett v. Pritchard, 2 Pick. 512. In this case, as in those, the property in the articles in controversy remained in the lessor until the payment of the rent. Under the form of the lease, it required no further act of the lessor to vest in him the property in these articles, and he may therefore hold them, as against an attaching creditor. He had the right of property, and the constructive possession, and may therefore well maintain this action for the wool and lambs. The case of Smith v. Atkins, 18 Verm. 461, is strongly in point, as an analogous decision.

Exceptions overruled.