(dissenting).
The landowner may easily protect himself as.to present indebt*161edness and future advances by filing Ms contract in tbe proper office, and, were tMs tbe only effect of tbe prevailing opinion in this case, I should not dissent. But there is a question deeper and of more consequence than this, which is foreclosed by the conclusion that such a contract is nothing more than a chattel mortgage, and must be filed as such; and it is this question which influences me to think the result altogether wrong. Nor can I agree with the majority in the assertion that such a contract is in effect a chattel mortgage, and must be filed. Nor, so far as I have observed, has that been the prevailing opinion among the members of the bar. At the risk of repetition, let me refer to the decisions on which the claim is based that the primary question has already been determined, namely, Porter v. Chandler, 27 Minn. 301, 7 N. W. 142; Wright v. Larson, 51 Minn. 321, 53 N. W. 712; Strangeway v. Eisenman, 68 Minn. 395, 71 N. W. 617; and Avery v. Stewart, 75 Minn. 106, 77 N. W. 560.
Porter v. Chandler was litigated in the court below and in this court, by defendant, upon the claim that in effect the contract there considered was a chattel mortgage, and by its terms constituted the men who worked the plaintiff’s farm part owners, of the crop raised, before a division thereof. This will be seen on an examination of the paper book on file in the office of the clerk of this court, and the brief of defendant’s counsel in the state library. The dispute was between the owner of the land and an attaching creditor of the men who worked the farm. The contract is to be found in the paper book, and, in my judgment, does not differ in any essential feature from that now before us. It purports to be a contract for hiring the Linnemanns to till and cultivate plaintiff’s farm for a single season; they to receive as payment a part of the crop. It contained provisions as to details similar to those found in the present contract. Porter was to remain the owner and in possession of all crops, and at the end of the season was to compensate the Linnemanns for their services by delivering to them one-half of the crop raised; excepting and deducting therefrom all claims held-by him against these men on account of advances made, and all other matters of indebtedness due from them.
By the contract now in question, Milbury was to remain the *162owner and in possession of all crops until a division was made. Lutes was to be compensated for his work and labor by receiving a share of the crops, and Milbury was to hold and retain enough of the crops raised to repay all advances made and all other indebtedness due and owing from Lutes. The Porter contract was no more one for hiring than was that now before us. The real character of these agreements was the same, and this is the test when comparing them to ascertain their legal effect. Neither one is to be construed by the label which one party or the other chose to attach to his particular instrument. The question now before us was presented and argued in the Porter case, and it was with reference to the contention that the contract should have been filed with the proper town clerk that the court, in the opinion, stated that the exclusive property in the crops was in Porter until he should set apart for the Linnemanns the amount they might be entitled to in payment of the balance due at the time specified, and that defendants’ request to charge the jury was wrong because it assumed that the contract was in effect a chattel mortgage. While the question now under consideration was not expressly and in exact terms decided in that case, I am of the opinion that it was really disposed of. If that case is to be considered an authority, it sustains the order appealed from.
It is further to be noticed that the Porter case was referred to in the one next to be mentioned (Strangeway v. Eisenman, 68 Minn. 395, 71 N. W. 617), without an intimation that it was erroneous in any respect. In fact, the suggestion is to the contrary. In the Strangeway case the controversy was between the owner of the farm and the party with whom he had contracted to till and cultivate it. The rights of third parties were not considered.
The next case is that of Anderson v. Liston, 69 Minn. 82, 72 N. W. 52; the dispute arising between the owner of the farm, who had filed his contract, and the mortgagee of the other party, whose mortgage was filed subsequent to the contract. There was a remark made in that opinion concerning the necessity of filing contracts of this character, to which reference will be made later.
This brings me to the case last mentioned (Avery v. Stewart, 75 Minn. 106, 77 N. W. 560), in which a contract similar to those con*163sidered in Strangeway v. Eisenman and Anderson v. Liston, and to that in the case at bar, was passed upon in a contest between the assignee of the owner of the farm, and a person who had purchased a part of the crop from the other party. It did not appear whether or not the contract had been filed, nor was that point considered. The court held that from, the evidence it conclusively appeared that there had been no division of the crop when the sale was made, and then said, at page 108:
“In Anderson v. Liston * * * we held that while the owner and occupier of the land were, under such a contract, tenants in common of the crops, the title to the crops remained in the owner as security for the performance of the contract on the part of the occupier; and it may be added that, until division, the title to the whole remains in the owner as security that his own share will not be wrongfully withheld from him by the occupier.”
As intimated in the last few lines of this quotation, the conclusion was that until division the title to the crops remained in the owner of the land. It would seem to follow from the decisions to which special reference has been made, to the effect that the “cropper’s” possession or control is only for the purpose of enabling him to cultivate and harvest the crops, and goes no further, and that until a division he cannot sell a part of the products, because the title to all remains in the owner of the farm, as.security that such owner will not be wrongfully deprived of his share. There may not be perfect harmony in some things which have been said in the opinions in these four cases, but in none except Anderson v. Liston has it been intimated that a farm contract of the character of the one now before us had to be filed in accordance with the provisions of the statute in order to protect the owner of the farm, as against creditors and subsequent purchasers or mortgagees in good faith of the cropper. It was said in the Anderson case that
“It may be conceded, as the law probably is, that the contract was in effect a chattel mortgage, and was required to be filed, as to subsequent bona fide purchasers and as to creditors”;
But this was an obiter remark, wholly unnecessary to a determination of the cause. Of course, it is not binding upon the court.
*164It is well settled, taking the cases-specially referred to as a whole, that, as between themselves, the parties to a contract containing the provisions found in the one now presented are tenants in common of the crop prior to a division, each having certain rights therein. The cropper is entitled to such possession and control as will enable him properly to perform the required labor, and this is the extent of his right. He may till, cultivate, harvest, and thresh as he has agreed and is obliged to do, but he has nothing which he can sell or dispose of. If this be so, I fail to see how his mortgage can become effective, or by what authority his share in the crops can be seized at the instance of a creditor, until there has been an actual division.
There is some diversity of opinion in other jurisdictions over this question. In a majority of the courts of last resort it is held that where it is agreed in the contract that the legal title and possession of the crops shall remain in the owner of the land until the other party has fully performed, and there has been a division, the reservation or contract does not operate as a mortgage or mere security to the owner. The legal possession of the land, as-well as the title to the entire crop, is in the owner of the soil. The possession of the cropper is limited, and for a special, necessary purpose. Such possession is merely incident to his right and duty' to plant, till, cultivate, and gather, and for these purposes only to control the soil and crops. .4 Am. & Eng. Enc. 895, and cases cited; 8 Am. & Eng. Enc. (2d Ed.) 323-325, and citations. And there seems to be no difference of opinion in the' courts wherein croppers and landowners are not regarded as tenants in common for all purposes. 4 Am. & Eng. Enc. 899, and. cases cited in notes.
I have referred to what was said in the Anderson case. That was purely obiter, and should be excluded from any consideration as an authority. It is to be remarked, however, that the opinion in that case was written by the same member of the court who wrote the opinion in Wright v. Larson, supra, on which the majority place great reliance. But it clearly appears that the question there was not as to the necessity of filing the farm contract in order to protect the landowner. Another question was the one *165involved, was the only one necessary to decide, and was the only one mentioned in the syllabus prepared by the writer of the opinion. That it wafe not regarded as authority on the proposition now contended for is also evidenced by the fact that four years later, in Anderson v. Liston, the same writer seems to have regarded the question as unsettled. From the statement of facts in the Wright case it appears that the chattel mortgage under which plaintiff claimed as against the intervenor (landowner) was executed before the grain was harvested, but that when the plaintiff asserted his rights thereunder, by bringing an action of replevin, the crop had been divided by and between the landowner and the cropper, the latter being in possession of his share. The former had surrendered possession, and with it the title previously held under the contract. The mortgage given to plaintiff by the cropper, which before that time had been a float, simply, not attaching definitely to any property or rights until the contract had been fully performed, then took effect; and this is what controlled that decision. A glance at the briefs will show that the counsel for the landowner did not seriously contend that it was unnecessary to file the contract to protect his client fully before division, while counsel for the mortgagee disposed of the matter by saying that
“A careful reading of the * * * contract will show that * * * it amounts to nothing more than a chattel mortgage upon the defendant’s share of the grain after division.”
Counsel were quite right, and I think no court would differ with them. Taking the facts and circumstances into consideration, I am of the opinion that the Wright case should not be held as absolutely disposing of the question. I can say that at no 'time within the twelve years of my service in this court has there been an understanding among its members to the effect now claimed for the decisions. But I said at the outset that it was not important what we held on the abstract proposition, and that, if it. were not for a question of greater significance and consequence, I should not dissent. I refer to what must be the inevitable result of the conclusion reached, namely, that, as it is held that such a contract is nothing more than a chattel mortgage, the landowner is powerless *166to prevent a sale by the cropper, or a seizure of the crop by a mortgagee, or officer of the law acting in behalf of a creditor, as soon as the seed is in the ground, and the substitution, through such seizure, of a new cropper in lieu of the one he has selected. The person with whom the owner has contracted, perhaps for personal fitness and ability, would then be excluded from the premises, and the self-substituted cropper remain in control. This is the logic of the decision. The basis thereof is that the landowner and the cropper are tenants in common. If so, the latter may sell, or incumber, or a creditor may act through an officer; for, as stated in the prevailing opinion, citing Potts v. Newell, 22 Minn. 561,
“There can be no question of a right of a tenant in common to mortgage or otherwise sell or dispose of his interest in the common property.”
I think this court should hesitate long — whether the decision is-rested upon the ground of stare decisis or on some other doctrine —before holding that the contract of the man who owns the land, and presumptively is the owner of a crop growing thereon, and a cropper whom he has selected to till and cultivate the same, shall be thrust aside, that a purchaser or a mortgagee or a sheriff may step into the cropper’s shoes and carry on the land. That is just what was- done here. Before the grain was stacked, the sheriff took possession, excluded the cropper, defied the owner, stacked and threshed the grain, dividing it at his leisure and as he willed. It is not to be forgotten that the landowner cannot protect himself from such an outrage by filing his contract. Filing will not prevent a seizure of the crop and the dispossession of the cropper, if a mortgagee or a creditor chooses to annoy either or both of the parties. Nor is this all. If the contract be filed, a subsequent mortgagee may, under the doctrine of the Anderson case, limit the credit to be given under such contract, and stop all future advances, by giving the landowner actual notice of his mortgage. The owner is then placed between the mortgagee, who gives him notice, and the cropper, who can have very little further interest in the crop; the result to be expected being an abandonment of the crop, and the contract by the latter.
*167For the reasons stated, and the very serious consequences which it seems to me will flow from the conclusion reached by the majority, I dissent. I am authorized to say that Chief Justice START concurs in these views.