McGarvey v. Prince

McCOY, J.

I concur in the result reached by SMITH, J., but upon the grounds that said clause in the lease, in connection with the other provisions therein that the landlord might distrain for unpaid rent, constituted, as between the parties and those having notice thereof, a contractual equitable lien, and this wholly independent of the question of a chattel mortgage or a pledge. 'The tenant, after it came into- existence, held said crop in trust for the landlord to satisfy such contractual lien. Esshom v. Watertown Hotel Co., 7 S. D. 74, 63 N. W. 229; 24 Cyc. 1249. Again the tenant went into possession and accepted benefits under this lease, and therefore is not in a position to assert the nonexistence or invalidity of said lien, no matter whether it be considered an equitable contractual lien, a chattel mortgage, or a pledge. 16 Cyc. 787.

WHITING, P. J., and GATES-, J., dissent.