Page:North Dakota Reports (vol. 2).pdf/254

 the said Edward A. Barnes, on receiving such payments at the time and in the manner above-mentioned, agrees to execute and deliver to the said John Brennan, or his assigns, a good and sufficient deed for the conveying and assuring to the said party of the second part the title to the above described premises, which the said Edward A. Barnes shall acquire as aforesaid free and clear of all incumbrances thereon caused or suffered by che said Edward A. Barnes; and it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties, and that said John Brennan is to have immediate possession of said premises as the agent and servant of said party of the first part; and the title to all crops grown upon said land in each year shall remain in the said Edward A. Barnes until the payment herein provided to be made in that year shall have been peid.” This contract was never recorded, and plaintiff had no knowledge, actual or constructive, thereof. Barnes took up the sheriff’s certificate of sale, but took no deed thereon. During the season of 1889, Brennan, entirely at his own costs and charges, raised a crop on said land. Subsequently the defendant, acting for Barnes, seized the crop under the terms of the contract, and sold it against plaintiff's protest and claim, under its mortgages. The judgment below was for plaintiff. The case hinges entirely upon the construction of the written contract hereinbefore set out. The trial court held that, in so far as the crops raised on said land in 1889 were concerned, said contract was, in effect, a mortgage only, and, as it was junior to plaintiff's first mortgage, it must be subordinate thereto; and that, as said agreement was not executed or filed as a chattel mortgage, and plaintiff took its second mortgage without knowledge, actual or constructive, of the existence of the contract, the lien of the second mortgage was superior to the lien under the contract. This holding is as favorable to appellant as contract will admit, and must be sustained, and in sustaining it we need not pass upon, and do not pass upon the ultimate effect of the contract upon title to the land. But when the contract was executed the fee to the land was in Brennan, with an absolute right of possession and right to redeem, extending to the following