This case, we think, cannot be distinguished, in any material point, from the case of Butterfield v. Baker, 5 Pick. 522.
In that case, a farm had been leased, with a provision that the produce, whether growing or harvested, if deposited on the land, should be held for the rent, and be at the disposal of the lessor, and that the lessor might enter to take the same for rent in arrear. And it was held that such produce, before any actual delivery to the lessor, was liable to attachment as the property of the lessee. In that case, as in this, the lease was at an annual rent payable in money, and the lessor claimed the produce by virtue of a clause in the lease, similar substantially to that by which the plaintiff now claims.
We have no doubt of the correctness of the decision in the former case, and we know of no principle of law, by which such a claim can be sustained. It is very clear, that the produce raised on the farm, in this case, was the property of the lessee at the time it was taken by the defendant, which was before the rent became due. At that time, the lessor had neither the property, nor the possession, nor the right of possession, in the produce taken; and if he afterwards had acquhed the right of property, that would not avail him in this action. But he has acquired no such right. The produce in question was not in existence at the time the lease was made, and the agreement in the lease did not amount to a sale. It is said that the subject of the agreement existed potentially, and therefore might be sold, as it was said in the case of Lewis v. Lyman, 22 Pick. 437,442. But if this principle would apply in the present case, the sale would not be complete and valid against the creditors or purchasers of the lessee. *52But the clause in the lease seems 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. It is not, however, necessary to decide this point. It is clear that the sale would not be valid against the defendant, without a delivery. Nor had the plaintiff any lien on the property. To sustain a lien by the agreement of the parties, actual delivery and possession of the property are required. We are therefore clearly of opinion, that there is no ground on which this action can be sustained.
Judgment for defendant.