(concurring in part and dissenting in part). In so far-as the majority opinion affirms the decision in the case of Minneapolis Iron Store Co. v. Branum, 36 N. D. 381, L.R.A.1917E, 298, 162 N. W. 543, I am in accord with it. That that case should bé recognized as completely settling the law on the questions there involved is a matter about which there can be no controversy, in view of the fact that, for a period of twenty-five years, a large amount of litigation was continually carried-on, with reference to the matters and legal propositions which were finally settled in that case. We confidently believe that the decision in this case will be as productive of as much litigation in the court as the case of Angell v. Egger, 6 N. D. 391, 71 N. W. 547.
It is not necessary here to enter into any extended discussion of *386that case,, for it is fully discussed aud analyzed in the case of Minneapolis Iron Store Co. v. Branum, supra.
Where a farm is rented for a share of the crop, as, for instance, where the owner of the land leases it to another, the tenant; to farm and cultivate, and each to receive one half or a share of the crop, the landlord and tenant are tenants in common of the crops raised by the tenant. Minneapolis Iron Store Co. v. Branum, supra; Smyth v. Tankersley, 20 Ala. 212, 56 Am. Dec. 193; Knox v. Marshall, 19 Cal. 617; Riddle v. Dow, 98 Iowa, 7, 32 L.R.A. 811, 66 N. W. 1066; De Mott v. Hagerman, 8 Cow. 220, 18 Am. Dec. 443; Strangeway v. Eisenman, 68 Minn. 399, 71 N. W. 617; Anderson v. Liston, 69 Minn. 82, 72 N. W. 52; Avery v. Stewart, 75 Minn. 106, 77 N. W. 560, 78 N. W. 244; McNeal v. Rider, 79 Minn. 153, 79 Am. St. Rep. 437, 81 N. W. 830; Adams v. State, 87 Ala. 89, 6 So. 270; Ponder v. Rhea, 32 Ark. 435; Tinsley v. Craige, 54 Ark. 346, 15 S. W. 897, 16 S. W. 570; Creel v. Kirkham, 47 Ill. 344; Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; McLaughlin v. Salley, 46 Mich. 219, 9 N. W. 256; Rohrer v. Babcock, 126 Cal. 222, 58 Pac. 537; State, Edgar, Prosecutor, v. Jewell, 34 N. J. L. 259; Wilber v. Sisson, 53 Barb. 258.
To the same effect in principle is National Bank v. Elkins, 37 S. D. 479, 159 N. W. 60.
Where the contract, as in this case, reserves the title to the crops in the landowner, and the right to take and hold enough of the tenant’s share to repay advances, etc., that provision is nothing but a chattel mortgage, and, as such, to be valid against creditors of the tenant or subsequent purchasers, without notice, it must be filed in the same manner' as' is required by our statute for the filing of a chattel mortgage.
It must -be considered that the landowner, by reason of that provi- . sion, does not have anything but a lien upon the tenant’s share. That lien is a chattel-mortgage lien, nothing else. But, at least some of the members of this court contend that, under the statute requiring chattel mortgages to be filed, in order to be notice to subsequent purchasers, there is no provision made whereby the lease should be filed.
We - contend that this is not a defect, for the clause in the lien is, in reality, a chattel mortgage, and should be filed as such, and this is the rule in Minnesota and several other states. •
*387In the case of McNeal v. Rider, 79 Minn. 153, 79 Am. St. Rep. 437, 81 N. W. 830, where a provision in a lease similar to that here under consideration was before the court for construction, in an opinion written by Brown, Justice (now Chief Justice, and one conceded by all to be a very eminent jurist), it was directly held that, in legal effect, that provision was a chattel mortgage, and was required to be filed in the same manner as a chattel mortgage. Neither did Minnesota have any law, providing for the filing of leases containing such a provision, in order to give notice of such chattel mortgage interest to subsequent purchasers or creditors. Minnesota then had, and- has yet, a law requiring the filing of chattel mortgages, the same as we have at this time.
The Minnesota statute was § 4129, G'eneral Statutes 1894. It reads thus:
"Chattel Mortgage Void, Unless Filed. — Every mortgage on personal property which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession, of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless it appears that such mortgage was executed in good faith, and not for the purpose of defrauding any creditor, and unless the mortgage, or a true copy thereof, is filed as hereinafter provided.”
Sections 4130 and 4131 of the General Statutes of 1894 of Minnesota provide for the place of filing and the effect of filing, and the court held that a lease containing a clause similar to the one under consideration, in order to be effective as a lien against subsequent purchasers or encumbrancers of the mortgagor, must be filed in accordance with § 4129, General Statutes of 1894 of Minnesota.
Our § 6758, Comp. Laws 1913, is practically identical with the section of the Minnesota statute. It reads thus:
“Void as to Whom, Unless Filed. — A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers' of the property in good faith for value, unless the original or an authenticated copy thereof is filed by depositing the same in the office of the register of deeds of the county where the property mortgaged, or any part thereof, is at such time situated.”
*388It is our opinion that the lien of the landowner on the tenant’s share, for advances, etc., is a chattel mortgage, and that to be effective against Subsequent purchasers, or encumbrancers of the mortgagor’s share of the crop, that such lease must be filed.
This js the logical and only reasonable construction. The opinion of the 'Minnesota court in the case above cited is based upon justice and reason. It imposes no hardship; it protects everyone, the landowner)-as well as the mortgagor and subsequent purchasers or encumbrancers in good faith of the 'mortgagor’s share of the crop, under the lease. It operates to protect the public, to protect those who extend credit to the mortgagor. It in no manner impairs the contract between the landlord and the tenant, but gives effect to it, and to the real intention of the parties. Its further effect is to prevent litigation, by clearly defining- the rights of the parties and the right of subsequent encumbrancers and purchasers, and by protecting them.
The only effect of the majority decision in this case is to create chaos, to lay the foundation for much future litigation. Creditors or persons who become subsequent purchasers and encumbrancers of tenants having a lease similar to the one in question will be met, no doubt, in scores of instances, by the landowner, who will appear on the scene, with a lease containing a provision such as this, and will claim the right to the mortgagor’s share of the crop, to satisfy all the demands owing the landowner, and will bo permit ted, under this decision, to hold it, although creditors and subsequent encumbrancers could have known nothing of such a claim, and who, if they had known, would not have extended credit represented by the chattel mortgages, which they may have taken to secure the same.
Under the determination of the matter, as contended for by the writer, all would be protected as in Minnesota, South Dakota, and many other states.
There is no reason why this harsh rule, contained in the majority opinion,' should be adopted. It opens the door to collusion and injustice. The landowner and the tenant could, under it, collude and defeat the claim of any mortgagee who may have chattel-mortgage security on the tenant’s share of crop.
There is neither reason nor justice in the decision. It is simply one which magnifies the rights of the landlord, or landowner, under his *389contract, and accords to him contract rights which he does not possess, under, nor by, the terms of the contract. It gives him far more power and rights than he possessed, under the very terms of the contract. It minimizes the rights of all other parties who are directly interested, or who may become indirectly interested by the taking of a chattel-mortgage lien upon the mortgagor’s, or tenant’s, share of the crop. It totally disregards the protection due the public and to the secured .creditors of the mortgagor. It is a trap into which will be led many scores of unwary creditors who will extend credit to mortgagors, who have such leases, and will be prolific of litigation and dissatisfaction. It is a denial of right and justice.
Robinson, Ch. J., concurs.